AN  INTRODUCTION  TO  THE  STUDY 
OF  GOVERNMENT 


THE  MACMILLAN  COMPANY 

NEW  YORK    -    BOSTON  •    CHICAGO  •    DALLAS 
ATLANTA  •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON  •    BOMBAY  •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


AN  INTRODUCTION 


TO  THE 


STUDY  OF  GOVERNMENT 


BY 


LUCIUS  HUDSON  HOLT,  PH.D. 

LIEUTENANT-COLONEL,    UNITED   STATES   ARMY 

PROFESSOR   OF   ENGLISH   AND   HISTORY,    UNITED   STATES 

MILITARY  ACADEMY 


Nefo  gorfe 

THE    MACMILLAN    COMPANY 
1915 

All  rights  reserved 


COPYRIGHT,  1915, 

BY  THE  MACMILLAN  COMPANY. 


Set  up  and  electrotyped.    Published  January,  1915. 


Nortnooti 

J.  8.  Gushing  Co.  —  Berwick  &  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


PREFACE 

SINCE  this  book  was  conceived  and  written,  events  have  come 
to  pass  which  will  ultimately  be  reflected  in  momentous  political 
changes  among  the  chief  states  of  the  modern  world.  Such 
changes,  however,  will  certainly  develop  along  the  lines  of  liberal 
experiment  in  government  as  such  experiment  has  been  made  in 
various  democratic  countries.  A  study  of  modern  government 
in  general  will,  therefore,  have  a  value  to  the  student  in  his 
consideration  of  coming  possibilities  in  European  political 
organization. 

This  book  has  been  written  to  place  before  students  a  concise 
statement  of  the  nature,  organization,  and  operation  of  govern- 
ment as  government  exists  in  the  foremost  states  of  the  modern 
world.  On  the  one  hand,  it  covers  a  narrower  field  than  the  cur- 
rent textbooks  on  Political  Science ;  on  the  other,  it  covers  a 
wider  field  than  the  current  textbooks  on  the  government  of  the 
United  States.  I  have  endeavored,  after  a  study  of  various  mod- 
ern governments,  to  set  forth  general  principles  of  government 
and  to  show  how  these  general  principles  are  modified  in  practice 
by  particular  states. 

Two  years  ago  I  wrote  to  several  of  the  leading  publishers  in 
this  country  asking  for  the  titles  of  their  publications  covering 
the  field  of  government,  and  specified  the  nature  of  the  material 
I  desired.  In  reply,  the  publishers  submitted  works  on  Political 
Science,  books  on  the  government  of  the  United  States,  and  theo- 
retical treatises  on  principles  of  government  in  general.  So  far 
as  I  could  discover,  no  book  of  the  precise  character  I  wanted 
was  in  print.  After  considerable  hesitation,  I  planned  the  work 
myself.  The  greatest  part  of  my  available  time  since  then  has 
been  spent  in  writing  the  book. 

The  general  divisions  of  my  plan  are  those  that  are  commonly 
adopted  by  political  science  writers.  The  only  innovation  that 


304785 


Vi  PREFACE 

deserves  special  mention  is  the  insertion  after  a  number  of  the 
chapters  of  what  I  have  called  "  Statistics  and  Illustrative  Cita- 
tions." It  is  intended  that  these  shall  be  used  in  some  such  way 
as  "  Source  "  books  and  volumes  of  "  Headings  "  are  used  in  many 
history  courses  to-day.  It  has  undoubtedly  been  the  experience 
of  most  history  teachers  that  an  author's  statement  supported  by 
documentary  proof  makes  a  much  greater  impression  than  the 
same  author's  statement  unsupported.  A  "  sphere  of  influence," 
for  example,  may  sound  visionary  to  the  student  when  it  is 
described  in  a  detached  way  by  the  author,  but  it  becomes  vivid 
reality  when  he  reads  a  treaty  between  two  states  in  which  the 
term  is  continually  repeated  and  its  meaning  made  manifest. 

In  the  preparation  of  this  study,  valuable  assistance  has  been 
rendered  by  Lieutenant  Robert  M.  Lyon,  United  States  Army,  at 
present  Assistant  Professor  of  History  at  the  United  States  Mili- 
tary Academy.  He  has  prepared  some  of  the  statistical  tables 
and  has  read  the  entire  book  in  manuscript,  offering  a  number 
of  suggestions  which  I  have  been  glad  to  adopt. 

L.  H.  H. 

WEST  POINT,  N.  Y., 
October,  1914. 


CONTENTS 

CHAPTER  I 

PAGE 

GOVERNMENT 1 

I.   THE  NATURE  OF  GOVERNMENT        ......  1 

II.   PURPOSE  OF  GOVERNMENT        .......  3 

III.    CLASSIFICATION  OF  FORMS  OF  GOVERNMENT  ....  4 

Statistics  and  Illustrative  Citations : 

1.  Area  and  Population  of  the  Chief  States  Mentioned     .  15 

2.  Diagram  showing  graphically  Various  Governments 

classified  under  the  Threefold  Division  adopted  in 

the  Text 16 

CHAPTER  II 

SOVEREIGNTY  AND  THE  CONSTITUTION 17 

I.    SOVEREIGNTY    ..........  17 

II.   CONSTITUTION   ..........  20 

Statistics  and  Illustrative  Citations : 

Example  of  a  State  whose  Sovereignty  is  restricted,  and 

the  Nature  of  the  Restriction 31 

CHAPTER  III 
THE  ORGANIZATION  OF  GOVERNMENT 33 

CHAPTER  IV 

THE  LEGISLATIVE 38 

,^1.  BICAMERAL  LEGISLATIVE  BODIES 39 

II.   POWERS  OF  THE  LEGISLATIVE  CHAMBERS        .         .  .47 

III.  RULES  OF  PROCEDURE  IN  LEGISLATIVE  BUSINESS  ...       48 

IV.  THE  INDIVIDUAL  LEGISLATOR          . 50 

Statistics  and  Illustrative  Citations  : 

Method  of  Choice,  Size  of  Constituencies,  Qualifications 
of  Members,  Tenure  of  Office,  etc.,  of  Legislative  in 

Different  States 62 

vii 


V1U  CONTENTS 

CHAPTER  V 

PAGE 

THE  EXECUTIVE 62 

I.  EXECUTIVE  AS  AGENT  OF  THE  LEGISLATIVE  ....  62 
II.   EXECUTIVE  FUNCTIONS  DISTINCT  FROM  THOSE  AS  AGENT  FOR 

THE  LEGISLATIVE 65 

III.  SELECTION  OF  CHIEF  EXECUTIVE 70 

IV.  ORGANIZATION  OF  EXECUTIVE  DEPARTMENT   ....  77 

Statistics  and  Illustrative  Citations  : 

1.  Qualifications,  Method  of  Choice,  etc.,  of  Elected  Ex- 

ecutive Head  in  Different  States      ....      80 

2.  Table  of  Ministers  in  England,  France,  and  Italy  since 

1880 87 

CHAPTER  VI 

THE  JUDICIARY 88 

Statistics  and  Illustrative  Citations  : 

The  Supreme  Court  of  the  United  States  and  its  Power  over 
Legislation 102 

CHAPTER  VII 

THE  ELECTORATE 113 

I.    QUALIFICATIONS  OF  THE  ELECTORATE     .....  114 

II.    FUNCTION  OF  THE  ELECTORATE       ......  121 

III.  APPOINTIVE  POWERS  OF  THE  ELECTORATE      ....  123 

IV.  LEGISLATIVE  POWERS  OF  THE  ELECTORATE    ....  132 

Statistics  and  Illustrative  Citations  : 

1.  Extract  from  the  Constitution  of  Belgium  to  show  the 

Provisions  for  Weighted  and  Compulsory  Voting     .     137 

2.  Statistics     showing    the    Injustice    of    Election  by 

Majorities 138 

3.  Examples  of   Provisions  for   Initiative    and   Refer- 

endum   142 

4.  The  Recall   .  149 


CONTENTS  IX 
CHAPTER  VHI 

PAGE 

POLITICAL  PARTIES 162 

Statistics  and  Illustrative  Citations  : 

1.  Political  Parties  in  Modern  States        ....  168 

2.  Primary  Elections 169 

CHAPTER  IX 

LOCAL   GOVERNMENT 176 

Statistics  and  Illustrative  Citations : 

}    Three-class  System  of  Indirect  Elections  in  Prussia     .  207 

.   Commission  Form  of  Government  for  Cities        .        .  208 

3.  City  Manager  Plan  for  Efficiency  in  City  Government  215 


i 


CHAPTER  X 

GOVERNMENT  OF  DEPENDENCIES 216 

I.   TYPES  OP  DEPENDENCIES         .......  216 

II.  GOVERNMENT  IN  COLONIAL  DEPENDENCIES      ....  220 

III.  GOVERNMENT  IN  DIRECT  DEPENDENCIES          ....  222 

IV.  THE  UNITED  STATES  AND  ITS  DEPENDENCIES          .        .         .  226 
V.   EFFECTS    OF   ACQUISITION    OF   DEPENDENCIES    UPON    GREAT 

STATES 230 

Statistics  and  Illustrative  Citations  : 

1.  Treaty  to  illustrate  the  Sphere  of  Influence         .        .  233 

2.  Treaty  to  illustrate  the  Reserval  of  Trade  and  Eco- 

nomic Privileges  in  Respective  Spheres  by   Con- 
tracting States 234 

3.  The  Ordinance  of  1787 237 

4.  The  Decision  in  the  Insular  Cases  (Extracts)      .        .  244 

CHAPTER  XI 

THE  FUNCTIONS  OF  GOVERNMENT 269 

I.   INDIVIDUALIST  THEORIES          .......  269 

II.   SOCIALIST  THEORIES 262 

III.  "  GENERAL  WELFARE  "  THEORIES 266 

IV.  FUNCTIONS  EXERCISED  BY  MODERN  GOVERNMENTS          .         .  268 
V.    THE  NECESSARY  FUNCTIONS  OF  GOVERNMENT         .         .        .  268 

Statistics  and  Illustrative  Citations  : 

Extract  from  the  Finance  Act  of  1894,  providing  for  the 

Inheritance  Tax  in  England 282 


X  CONTENTS 

CHAPTER  XII 

PAQB 

UNNECESSARY    OR    OPTIONAL    FUNCTIONS    OF    GOVERN- 
MENT             285 

I.   PUBLIC  WORKS 286 

II.   PUBLIC  EDUCATION 290 

III.  PUBLIC  CHARITY 291 

IV.  INDUSTRIAL  REGULATION 293 

V.    PUBLIC  SAFETY  REGULATION .  304 

Statistics  and  Illustrative  Citations : 

1.  English  Old  Age  Pension  Law 306 

2.  The  Sherman  Anti-trust  Act 309 

3.  The  Interstate  Commerce  Act 311 

APPENDIX 

A.  FRANCE  :  CONSTITUTIONAL  LAWS 323 

B.  GERMANY  :  THE  CONSTITUTION  OF  THE  GERMAN  EMPIRE        .         .  337 

C.  UNITED  STATES  :  THE  CONSTITUTION        ......  359 

INDEX  .  377 


AN  INTRODUCTION  TO  THE  STUDY 
OF  GOVERNMENT 


AN  INTRODUCTION  TO  THE  STUDY 
OF  GOVERNMENT 

CHAPTER  I 

GOVERNMENT 

I.  THE  NATURE  OF  GOVERNMENT 

ALL  human  communities  are  organized  in  such  a  way  that 
certain  members  of  the  community  have  the  power  to  issue  and 
enforce  commands  over  the  others.  A  system  has  Nature  of 
been  established  in  all  human  societies,  whether  by  government, 
force,  by  mutual  contract,  or  by  the  slow  process  of  evolution, 
whereby  the  community  at  large  yields  allegiance  and  obedience 
to  the  will  of  a  few.  This  organization  by  which  the  exercise 
of  sovereign  power  is  vested  in  certain  individuals  of  a  com- 
munity is  known  as  the  government. 

To  understand  more  clearly  the  nature  of  government  as  dis- 
tinguished from  another  fundamental  concept  of  political  science, 
the  idea  conveyed  by  the  term  "government"  should  state  and 
be  compared  with  that  conveyed  by  the  term  "  state."  govem- 
State  is  the  more  comprehensive  term,  including  the  * 
elements  of  territory,  population,  sovereignty,  and  political  organi- 
zation.    Government  is  but  a  single  word  to  characterize  the 
political  organization  of  the  state. 

All  states  are  essentially  alike,  for  all  possess  the  same  elements. 
It  is  not  possible  to  imagine  a  state  without  territory,  or  without 
people,  or  without  sovereignty  (i.e.  independent  supreme  power), 
or  without  government.  Of  all  these  elements,  however,  the 

B  1 


2    J£N  :!NTSoOT)C|fiioK  ^o  THE  STUDY  OF  GOVERNMENT 

one  best  qualified  to  serve  as  a  distinguishing  characteristic  of 
the  state  as  a  political  unit  is  the  last,  government.  The  terri- 
tories of  states  may  differ  in  extent  and  topographical  features, 
the  peoples  of  states  may  differ  in  numbers,  race,  and  degree 
of  civilization,  the  sovereignty  of  states  is  always  theoretically 
equal  in  independence,  but  a  consideration  of  no  one  of  these 
elements  gives  an  idea  of  the  most  essential  differences  between 
modern  states.  For  this  idea  we  turn  to  the  element  of  gov- 
ernment. 

According  as  we  refer  to  the  political  organization  of  the  whole 

state  or  to  the  political  organization  of  divisions  of  the  state  we 

may  talk  of  state  government  and  of  various  kinds  of 

ernment        local  government,  as  commonwealth  government,  pro- 

and  local  vincial  government,  departmental  government,  mu- 
govermnent.  .  .  ,  i  •  i  mi. 

nicipal  government,  colonial  government,  etc.  The 
state  government,  however,  exercises  the  supreme  power  through- 
out the  whole  territory  and  over  the  whole  people  of  a  state  and 
determines  the  organization  of  the  various  kinds  of  local  gov- 
ernment. It  is,  therefore,  with  the  fundamental  character- 
istics of  the  government  of  states  that  our  study  is  chiefly 
concerned. 

We  may  restrict  our  examination  of  governments  to  the  gov- 
ernments in  the  states  of  Europe  and  America,  for  in  these  states 
.  may  be  found  the  most  important  illustrations  of  mod- 

ernments  in  ern  practice.  In  the  little  continent  of  Europe  ("the 
Europe  and  peninsula  of  Asia,"  as  it  is  often  called)  and  in  North 

America  have  originated  and  developed  the  most 
important  experiments  in  political  organization  of  modern  times. 
Throughout  Africa,  in  sections  where  the  territory  is  not  under 
European  control,  governments  are  those  of  savage  or  semi- 
savage  tribes ;  throughout  Asia,  hi  sections  where  the  territory 
is  not  under  European  control,  progressive  states  are  intro- 
ducing European  or  American  forms  of  political  organization. 
Thus  any  consideration  of  government  as  illustrated  in  the 
states  of  Europe  and  America  will  give  results  applicable 
to  the  governments  in  all  the  civilized  states  of  the  world. 


GOVERNMENT  3 

II.  PUBPOSE  OF  GOVERNMENT 

The  fundamental  purpose  for  which  the  organization  of  polit- 
ical control  known  as  government   exists  is  (1)  to  maintain 
peace  and  order  for  the  promotion  of  the  general  wel-  Purpose  of 
fare  within  the  state,  and  (2)  to  insure  the  safety  of  government, 
the  state  from  external  aggression. 

It  is  essential  that  citizens  of  the  state  shall  be  allowed  to  live 
in  conditions  of  peace  and  order,  that  they  shall  be  protected 
in  their  legitimate  undertakings  from  the  consequences  of  dis- 
turbances incited  by  a  portion  of  the  public  or  from  encroach- 
ments upon  their  rights  by  other  individuals.  Hence  it  is  a 
primary  duty  of  government  to  use  its  powers  to  suppress  revolts, 
insurrections,  or  other  forms  of  public  disturbance,  and  to  safe- 
guard for  the  individual  the  security  of  civil  rights,  contracts,  and 
the  like.  Only  in  a  state  where  the  public  peace  and  order  are 
strictly  conserved,  and  individual  rights  guarded,  can  the  people 
at  large  advance  in  material  prosperity  and  general  welfare. 

It  is  essential,  further,  that  the  government  insure  the  safety 
of  the  state  from  any  aggression  from  another  state.  It  is 
probable  that  this  reason  for  the  existence  of  government  has 
its  roots  far  back  in  the  history  of  social  institutions.  The 
necessity  for  the  protection  of  a  community  from  the  aggres- 
sions of  neighboring  tribes  may  have  been  one  of  the  primary 
reasons  for  the  development  of  political  organization  in  very 
early  times.  This  necessity  still  persists  in  the  modern  world. 
The  greed  of  modern  states  for  more  territory  and  for  superior 
advantages  brings  continual  rivalry  and  sometimes  war.  The 
whole  vast  structure  of  international  law,  international  diplo- 
macy, and  the  like,  exists  for  the  better  adjustment  of  the 
rival  ambitions  of  various  states.  Every  government  recognizes 
that  it  is  a  primary  duty  to  maintain  and  perpetuate  its  own 
existence  and  the  integrity  of  its  territories,  and  to  keep  itself 
in  constant  readiness  to  repel,  by  force  if  necessary,  any  attempt 
on  the  part  of  neighboring  states  to  terminate  that  existence  or 
to  diminish  those  territories. 


4      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

In  modern  times,  some  political  thinkers  have  added  to 
these  purposes  a  general  purpose  for  the  mental,  spiritual, 
and  moral  uplift  of  the  world.  All  governments  are  supposed 
to  share  this  general  purpose  in  common  and  to  cooperate 
when  opportunities  arise  to  further  such  a  desirable  end.  The 
best  proof,  however,  that  the  primary  and  fundamental  pur- 
pose of  a  government's  existence  is  as  outlined  above  is  the 
readiness  of  any  government  to  cast  aside  all  considerations 
of  world  uplift  if  it  considers  its  internal  peace  and  order,  or 
its  existence  or  territories,  threatened. 


III.  CLASSIFICATION  OF  FOKMS  OF  GOVERNMENT 

For  convenience  of  treatment  we  may  group  modern  types 
of  government  in  certain  general  classes.  Since  governmental 
Classified-  organization  in  a  modern  state  is  so  complex  that 
tionofgov-  endless  variety  in  detail  exists,  these  classes  must 
ernments.  necessarily  be  very  broad.  They  have  a  value, 
however,  in  allowing  us  to  group  the  states  according  to  certain 
fundamental  and  typical  characteristics. 

The  most  natural  classification  is  the  popular  division  of 
governments  into  monarchies  and  republics,  the  principle  of 
selection  being  the  method  by  which  the  executive  head  of  the 
state  is  selected.  According  to  this  idea,  any  government 
whose  executive  head  is  an  hereditary  ruler  is  a  monarchy, 
and  any  government  whose  executive  head  is  an  elected  official 
chosen  for  a  stipulated  period  is  a  republic.  Thus  England 
and  Russia  might  be  grouped  as  monarchies,  and  France  and 
the  United  States  as  republics. 

But  unfortunately  this  method  of  classification  is  worthless 
for  our  purposes.  Even  the  man  who  thus  groups  the  govern- 
ments realizes  that  there  is  a  vast  difference  between  the 
nature  of  the  English  system  and  the  Russian  system,  between 
the  French  system  and  the  United  States  system.  We  must 
look  for  other  bases  of  classification,  bases  which  will  reveal 
more  truly  the  essential  characteristics  of  the  governments, 


GOVERNMENT  5 

which  will  differentiate  the  systems  by  reference  to  their 
nature  and  spirit,  to  their  form  or  structure,  and  to  their  opera- 
tion. We  want  a  classification  that  will  tell  us  at  a  glance 
whether  a  government  is  liberal  or  not,  whether  a  government 
is  organized  according  to  the  ancient  monarchical  forms  or 
not,  whether  a  government  centralizes  or  distributes  its  powers. 
No  single  method  of  classification  has  been  devised  to  include 
these  various  points,  so  that  we  must  classify  and  reclassify 
the  governments  until  we  obtain  a  general  notion  of  their 
characteristics. 

With  this  consideration  in  mind,  we  may  try  first  to  group 
governments  as  (1)  autocratic,  (2)  aristocratic,  or  (3)  demo- 
cratic, according  as  the  system  provides  for  control  (1)  by  one 
person,  (2)  by  a  limited  class  or  group  of  persons,  or  (3)  by  the 
mass  of  persons  in  the  state.  Such  a  grouping  is  significant  of 
the  essential  nature  of  the  government,  but  a  little  thought  will 
show  that  it  reveals  little  of  governmental  structure  or  operation. 

Again,  we  may  group  governments  as  (1)  hereditary  or 
(2)  elective,  according  as  the  system  provides  for  an  executive 
head  (1)  by  any  of  the  various  forms  of  inheritance  or  (2)  by 
any  of  the  various  forms  of  election.  Such  a  grouping  com- 
plies with  our  second  requirement  in  that  it  reveals  a  promi- 
nent characteristic  of  the  form  or  structure  of  the  government, 
but  we  realize  that  it  gives  little  indication  of  government's 
essential  nature  or  practical  operation. 

Yet  again,  we  may  group  governments  as  (1)  unitary  or 
(2)  federal,  according  to  the  way  the  system  provides  (1)  for 
the  centralization  of  governmental  powers  in  a  single  organiza- 
tion, or  (2)  for  the  distribution  of  these  powers  between  the 
central  and  local  organizations  in  the  state.  Such  a  grouping 
emphasizes  an  important  factor  in  the  operation  of  government 
without  revealing  much  of  the  fundamental  nature  or  outward 
form. 

By  a  combination  of  these  three  classifications  we  may  gain 
a  general  notion  of  the  chief  characteristics  of  a  government 
and  its  resemblances  to  and  differences  from  other  governments. 


6      AN  INTRODUCTION  TO   THE   STUDY   OF   GOVERNMENT 

1st  Classification 

The  classification  of  governments  according  to  the  relative 
number  of  individuals  concerned  in  governing  is  as  old  as 

Herodotus  (5th  century  B.C.),  yet  it  is  still  service- 
Autocracies.  , J          '.        . 

able.     An  autocracy  (or  despotism)  is  a  government 

in  which  the  final  supreme  control  is  vested  in  the  will  of  a 
single  individual.  In  complex  governmental  affairs,  of  course, 
a  vast  body  of  officials  is  necessarily  associated  with  such  an 
individual  in  execution  and  administration,  but  this  fact  does 
not  alter  the  essential  character  of  the  government. 

Autocratic  government  was  almost  certainly  the  earliest 
form  of  government.  The  unrestricted  power  of  the  chieftain 
in  the  rudimentary  state  of  primitive  times  can  scarcely  be 
questioned.  At  an  early  period  in  authentic  history,  auto- 
cratic government  was  the  usual  government  in  the  states  of 
the  world.  Such  was  the  government  of  ancient  Egypt  and 
of  the  mighty  states  of  Asia.  Even  into  a  relatively  modern 
period  the  autocratic  government  persisted.  Whether 
Louis  XIV  ever  used  the  words  "L'etat,  c'est  moi"  or  not, 
the  statement  accurately  characterized  the  spirit  of  his  govern- 
ment. In  effect,  Russia  to-day  presents  an  example  of  auto- 
cratic government,  despite  the  creation  and  present  existence 
of  the  duma. 

An  aristocracy  is  a  government  in  which  the  supreme  power 
Aristocra-  is  in  the  hands  of  a  limited  group  or  class  of  the 
cies.  people. 

Compared  with  the  number  of  autocratic  governments  of 
the  past  and  of  democratic  governments  of  the  present,  few  ex- 
amples of  aristocratic  governments  are  revealed  by  history.  No 
aristocratic  government  has  shown  a  capacity  for  permanent 
existence.  The  reason  is  to  be  found  in  the  nature  of  the 
aristocratic  form.  The  unity  of  action  demanded  by  the 
government  of  a  great  state  is  greater  than  can  be  consistently 
maintained  by  a  group  of  men  invested  with  equal  authority 
and  equal  rank.  Either  the  arrogance  of  the  governing  class 


GOVERNMENT  7 

excites  the  hostility  of  the  other  classes  in  the  state  and  ends 
in  the  overthrow  of  the  rulers,  or  natural  jealousies  create 
factions  among  the  governing  class  that  result  in  schism  and 
the  destruction  of  the  government.  Notable  aristocracies 
have,  however,  existed  for  a  limited  period.  In  relatively 
modern  times,  Venice  offers  the  best  example  of  a  strictly 
maintained  aristocracy.  Once  among  the  most  powerful  and 
famous  governments  of  Europe,  controlling  absolutely  certain 
gateways  of  commerce,  the  government  of  Venice  was  a  close 
aristocracy  in  which  on  the  one  hand  the  mass  of  the  people 
were  of  no  consideration  and  on  the  other  the  powers  of  the 
duke  or  doge  were  jealously  checked  on  all  sides  lest  they 
should  be  elevated  into  autocracy.  The  neighboring  state  of 
Florence,  with  its  Guelphs  and  Ghibellines,  and  later  with  the 
famous  Medici  family,  may  properly  be  classed  also  as  an 
aristocracy,  even  though  a  semblance  of  a  popular  advisory 
body  existed. 

A  democracy  is  a  government  in  the  organization  of  which 
the  people  exercise  an  active  control. 

The  people  may  exercise  this  control  in  one  of  Democra- 
two  ways,  directly  or  indirectly.    In  certain  states 


the  mass  of  the  people  gather  in  public  assembly  (2)  repre- 
and  act  directly  in  governmental  affairs.  Such  a 
system  was  in  effect  in  the  small  city-states  of  ancient  Greece 
and  is  to-day  retained  in  a  few  of  the  small  cantons  of  Switzer- 
land. The  enormous  population  of  most  democratic  states 
in  modern  times,  however,  has  made  such  direct  action  on  the 
part  of  its  citizens  impracticable.  Consequently,  what  is 
known  as  the  representative  system  is  now  established  in 
democracies.  According  to  this  system,  a  relatively  small 
number  of  persons  are  delegated  to  act  as  the  representatives 
of  the  mass  of  the  people  in  affairs  of  government.  Under 
this  system,  the  people  exercise  their  control  over  the  govern- 
ment indirectly.  In  theory,  the  representatives  hold  a  trust 
for  the  mass  of  the  people  :  the  people  have  a  right  to  expect 
their  representatives  to  decide  for  them  as  they  themselves 


8      AN   INTRODUCTION  TO   THE   STUDY   OF   GOVERNMENT 

would  decide  could  they  be  gathered  together  in  a  deliberative 
assembly.  In  practice,  grave  abuses  of  the  representative 
system  have  at  times  existed.  In  England,  before  the  passage 
of  the  reform  bill,  for  example,  a  considerable  proportion  of 
the  so-called  popular  house  of  Parliament  owed  election  to 
the  will  of  a  few  great  landowners  and  were  naturally  in- 
fluenced by  this  fact  in  their  deliberations.  In  the  United 
States  the  people  have  upon  occasions  had  a  suspicion  that 
the  representatives  were  acting  not  so  much  as  trustees  for 
the  nation  at  large  as  promoters  of  the  interests  of  special 
individuals  or  corporations.  In  general,  a  disposition  on  the 
part  of  some  of  the  representatives  of  the  people  to  be  influenced 
in  one  way  or  another  against  the  public  weal  is  one  of  the 
weaknesses  of  this  representative  system  of  government. 

2d  Classification 

The  second  general  classification  is  based  on  a  feature  of 

the  structure  of  government;  namely,  on  the  dis- 

and  elective    tinction    between    an    hereditary    executive    head 


executive       g^  an  elective  executive  head. 

The  elective  executive  head  is  not  a  recent  develop- 
ment in  government,  nor  has  the  election  of  the  executive  head 
been  restricted  to  democratic  governments.  It  is  probable 
that  in  primitive  times  a  form  of  election  was  used  to  choose 
the  chieftains  of  tribes,  and  we  know  that  in  relatively  modern 
times  the  autocratic  head  of  the  Holy  Roman  Empire  was 
elected  to  his  office.  Yet  it  is  a  fact  that  generally  in 
history  the  notion  of  elective  executive  is  associated  with 
democratic  government  and  the  notion  of  hereditary  executive 
is  associated  with  autocratic  government.  Since  early  in  the 
nineteenth  century,  however,  the  principles  of  democratic  gov- 
ernment have  made  great  progress,  so  that  at  the  present  time 
all  the  governments  in  the  foremost  states  of  the  world,  whether 
with  an  hereditary  or  an  elected  executive,  have  important 
democratic  features.  Where  hereditary  executives  are  retained 


GOVERNMENT  9 

at  the  head  of  such  governments,  they  are  survivals  from  their 
autocratic  predecessors  and  their  powers  are  strictly  limited 
and  subordinated  to  the  political  control  of  the  people.  Thus 
in  England  the  hereditary  monarch  is  only  a  nominal  sovereign, 
and  in  Italy  his  prerogatives  are  limited  by  constitutional  pro- 
visions. In  states  where  the  hereditary  monarch  failed  to 
adapt  himself  to  the  growing  democratic  spirit  of  his  times, 
the  whole  organization  of  government  was  changed  to  replace 
the  hereditary  by  an  elective  head.  Thus  in  France  with  the 
throes  of  a  series  of  bitter  revolutions  was  born  a  republic. 
And  thus,  in  our  own  age,  little  Portugal  and  unwieldy  China 
have  turned  out  their  hereditary  sovereigns  to  install  a  new 
organization  with  an  elective  head. 

The  principles  governing  the  inheritance  in  hereditary  gov- 
ernments differ  widely,  as  do  also  the  principles  governing 
election  in  elective  governments.  In  hereditary  p,^^ 
governments,  according  to  one  system,  priority  of  governing 
birth  entitles  the  oldest  member,  or  the  oldest  inheritance- 
male  member,  of  the  family  of  the  deceased  ruler  to  be  suc- 
cessor. Thus  a  brother  of  a  deceased  ruler  might  succeed  to 
the  throne.  According  to  a  second  system,  the  oldest  im- 
mediate descendant  of  the  deceased  ruler  is  the  successor,  or, 
as  modified  in  many  cases,  the  oldest  immediate  male  de- 
scendant of  the  deceased  ruler.  Thus  in  ordinary  cases  only 
children  of  a  deceased  ruler  can  inherit.  In  cases  where  a 
ruler  leaves  no  children,  the  rule  may  revert  to  a  living  de- 
scendant of  a  former  ruler. 

In  elective  governments,  according  to  one  system,  the  execu- 
tive head  is  chosen  by  direct  vote  of  the  people.     This  system 
is  used  to-day  in  the  commonwealths  of  the  United  princi  !es 
States  and  in  certain  of  the  South  American  repub-  governing 
lies,  as  Peru  and  Brazil.     The  method  of  electing  election- 
the  chief  executive  in  the  United  States,  although  originally 
indirect,  is  to-day  practically  direct,  for  the  electors  in  the 
electoral  college  are  chosen  in  the  name  of  the  candidate  for 
whom  they  are  pledged  to  vote.    According  to  the  second 


10      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

system,  the  executive  head  is  named  by  a  body  selected  by 
the  people,  either  by  a  body  elected  especially  for  this  purpose 
or  by  a  body  existing  for  other  purposes  but  constitutionally 
invested  with  this  power.  The  method  of  indirect  election 
is  used  in  Chile,  the  Argentine  Republic,  France,  and  Switzer- 
land. In  Chile  and  the  Argentine  Republic  electors  directly 
elected  by  the  people  name  the  executive;  in  France  and 
Switzerland  the  legislative  bodies  are  empowered  to  make  the 
choice. 

Each  of  the  methods  mentioned  above  for  choosing  the 
chief  executive  has  its  adherents  and  its  critics.  With  refer- 
ence to  the  hereditary  system  as  compared  with  the  elective : 
does  the  retention  of  the  figure  of  royalty  foster  in  the  people 
of  the  state  a  kind  of  loyalty  and  willing  obedience  to  con- 
stituted authority,  unknown  in  the  states  where  the  people 
directly  or  indirectly  make  their  own  chief  executive?  Does 
royalty  lend  dignity  and  prestige  to  a  government  and  tend 
to  impart  stability  and  continuity  of  policy?  Or  is  royalty 
merely  an  outworn  relic  of  a  past  age,  tending  to  obstruct  the 
progress  of  political  institutions?  With  reference  to  the 
methods  of  determining  the  succession  in  hereditary  govern- 
ments :  does  the  restriction  of  the  succession  to  the  male 
members  of  the  family  or  to  the  male  descendants  operate 
usually  to  the  best  advantage  for  the  government?  Or  is 
this  likewise  an  outworn  tradition?  With  reference  to  the 
distinction  between  direct  and  indirect  choice  in  elective 
governments :  does  the  direct  election  insure  the  choice  of 
the  man  best  qualified  for  the  office?  Is  it  wiser  to  leave  the 
determination  of  so  important  an  official  to  a  small  body  of 
selected  representatives  of  the  people?  Is  it  wise  to  throw 
the  choice  of  the  chief  executive  into  the  legislature  in  view 
of  the  subsequent  relations  that  must  exist  between  the  execu- 
tive and  the  legislature? 


GOVERNMENT  11 

3d  Classification 

The  third  basis  of  classification  is  to  group  governments 
as  unitary  or  federal  according  to  whether  their  powers  are 

centralized  or  distributed.     In  unitary  governments  _  .. 

'_  Unitary  and 

the  system  provides  that  one  central  organization  federal  gov- 
shall  administer  the  supreme  authority.  Local  ernments- 
divisions  of  the  state  are  made  for  convenience,  but  such 
local  divisions  are  the  creation  of  the  central  organization 
and  have  no  rights  except  those  which  the  central  organ- 
ization gives  them.  The  bodies  which  act  as  administrators 
for  these  local  divisions  are  created  by  the  central  organ- 
ization, are  intrusted  by  the  central  organization  with  certain 
functions,  and  are  removable  at  the  will  of  that  central 
organization.  In  federal  governments,  on  the  other  hand, 
the  various  powers  of  government  are  distributed  according 
to  their  nature  between  (1)  the  central  organization  represent- 
ing the  whole  state  and  (2)  the  several  local  organizations 
representing  divisions  of  the  state  having  certain  rights  guar- 
anteed to  them  by  the  constitution  of  the  state.  In  federal 
governments  the  local  units  have  a  constitutional  right  to  their 
existence  and  their  functions;  each  wields  its  constituted 
powers  free  from  the  interference  or  encroachment  of  the 
central  organization  or  of  the  organizations  of  other  units. 

Historically,  unitary  governments  are  the  direct  descendants 
from  the  highly  centralized  monarchies  of  a  previous  time. 
Thus  France  to-day  has  inherited  from  its  past 
the  centralized  system;  England  also,  considered 
apart  from  its  colonies,  presents  in  its  government  unitary  and 
of  the  United  Kingdom  the  centralized  system; 
all  autocracies  are  by  their  very  nature  examples 
of  unitary  governments. 

Federal  governments,  on  the  other  hand,  originated  in 
leagues  voluntarily  formed  by  units  originally  possessing  a 
sense  of  independent  action  and  powers.  The  two  foremost 
examples  of  federal  government,  Germany  and  the  United 


12      AN   INTRODUCTION  TO   THE   STUDY   OF   GOVERNMENT 

States,  illustrate  this  fact.  Modern  Germany  is  the  direct 
descendant  from  the  North  German  Federation  formed  after 
the  Austro-Prussian  war  of  1866.  This  North  German  Federa- 
tion at  first  included,  besides  Prussia,  one  kingdom,  ten  duchies, 
seven  principalities,  and  three  free  cities,  and  was  increased 
after  the  Franco-Prussian  war  of  1870  by  Bavaria,  Wurtem- 
berg,  and  Baden,  and  South  Hesse.  The  nature  of  the  union 
from  which  our  present  federal  state  is  descended  is  too  familiar 
to  need  description. 

The  principles  underlying  the  distribution  of  governmental 
powers  in  a  federal  government  are  uniform,  but  in  their  ap- 
plication of  these  principles  states  differ.  It  is 
tionof U  commonly  agreed  that  those  affairs  which  concern 
powers  in  the  common  welfare  of  all  parts  of  the  federation 
should  be  under  the  control  of  the  central  organiza- 
tion; and  that  all  other  affairs,  affairs  of  local 
interest  and  importance,  should  be  under  the  control  of  the 
local  organizations.  The  lack  of  uniformity  in  applying 
these  principles  comes  from  the  difficulty  of  deciding  on 
the  affairs  which  require  uniform  regulation  throughout  the 
entire  federation.  Federations  agree  in  placing  under  the 
control  of  the  central  organization  the  consideration  and 
treatment  of  international  relations,  as  in  making  war  or 
peace,  in  forming  treaties  and  in  regulating  commerce,  and 
the  handling  of  such  internal  affairs  requiring  uniform  legis- 
lation as  interstate  commerce,  state  coinage,  laws  of  copyright, 
patents,  and  postal  regulations.  In  many  instances,  however, 
federations  differ.  For  example,  the  United  States  has  no 
uniform  civil,  criminal,  and  commercial  law  system :  Germany 
has.  Again,  the  United  States  allows  the  separate  common- 
wealths to  make  the  laws  covering  marriage  and  divorce : 
Germany  has  laws  uniform  for  the  whole  federation  covering 
marriage  and  divorce. 

A  transitory  system  of  government,  outwardly  somewhat 
resembling  the  federal  system  but  clearly  distinguishable 
therefrom,  is  what  is  known  as  confederate  government. 


GOVERNMENT  13 

Whereas  in  a  federal  government  the  separate  units  are  in- 
dissolubly  united  by  the  surrender  of  their  independent  sov- 
ereign powers  into  the  common  sovereignty  of  the  confeder- 
government  of  the  whole  state,  in  a  confederate  gov-  ate  gov- 
ernment each  separate  unit  retains  its  independent  ernment- 
sovereign  power,  being  bound  with  other  equally  independent 
units  in  a  voluntary  alliance.  In  a  confederation  the  united 
organization  is  for  certain  delegated  functions  only:  in  a 
federation  the  organized  government  possesses  the  supreme 
power  over  its  constituent  units.  In  a  confederation  each 
unit  has  the  right  of  separate  decision  in  most  governmental 
affairs,  thus  emphasizing  its  full  independence :  in  a  federation 
affairs  of  the  government  of  the  state  as  a  whole  are  not  re- 
ferred to  the  separate  units  except  in  rare  cases  covered  by 
the  constitution.  In  a  confederation  the  alliance  is  of  the 
nature  of  a  league  of  independent  states,  from  which  any  one 
state  reserves  the  right  to  withdraw  at  will :  in  a  federation 
the  notionyof  alliance  of  independent  units  is  lost  in  the  in- 
dissoluble unified  state  that  is  created.  Confederations,  like 
aristocracies,  have  not  shown  a  capacity  for  permanent  exist- 
ence. The  weakness  of  the  central  power  does  not  enable 
it  to  act  with  rapidity  in  crises,  and  the  conflicting  interests 
of  the  component  units  prevent  that  coherence  of  action 
which  makes  for  strength. 

At  first  the  federal  system  was  almost  universally  praised 
as  the  last  step  in  the  evolution  of  government.  The  com- 
bination of  the  executive  unity  of  the  state  with 

.  .  Weaknesses 

local  independence  was  believed  to  give  to  govern-  Ofthe 
ment  a  flexibility  that  it  had  never  possessed  un-  federal 
der  any  other  form  of  organization.      Rapidity  of 
decision  and  action  on  the  part  of  the  central  power  was  in- 
sured side  by  side  with  freedom  for  the  development  of  local 
government  along  the  lines  desired  by  the  various  sections  in 
the  state.     In  states  extending  over  a  great  area,  parts  of 
which  differ  radically  in  their  social  and  economic  conditions, 
federal    government   seemed    especially   necessary.     In    such 


14      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

states  new  territory  might  be  developed  under  the  control  of 
a  local  government  familiar  with  conditions  and  needs,  old 
and  settled  communities  could  continue  along  their  conserva- 
tive and  traditional  lines,  and  both  new  and  old  could  in  times 
of  national  stress  be  represented  by  a  unified  central  govern- 
ment whose  duty  would  be  to  defend  and  advance  the  interests 
of  the  state  as  a  whole. 

But  the  study  of  the  operation  of  federal  government  in 
the  light  of  history  has  revealed  certain  tendencies  which  are 
liable  at  any  time  to  bring  about  serious  trouble. 

In  the  first  place,  possibility  of  dispute  always  exists  on  the 
relative  spheres  of  action  of  the  central  government  and  the 
local  governments.  Any  individual  unit  in  the  federal  state 
may  greatly  embarrass  the  central  government,  for  example, 
by  measures  which  are  out  of  accord  with  the  treaty  obliga- 
tions of  the  central  government;  or  the  central  government 
may  tend  to  usurp  authority  over  matters  which  are  by  many 
believed  to  be  subject  to  the  control  of  the  local  organiza- 
tions. 

In  the  second  place,  the  variety  of  laws  existing  in  the  differ- 
ent units  on  matters  subject  to  their  jurisdiction  is  a  hindrance 
to  the  uniform  development  of  the  whole  nation.  For  example, 
laws  concerning  labor,  laws  concerning  the  incorporation  and 
regulation  of  industries,  and  laws  concerning  marriage  and 
divorce  differ  radically  in  various  of  the  commonwealths  of 
the  United  States. 

A  third  weakness,  and  a  weakness  that  may  threaten  the 
very  existence  of  the  state,  is  the  possibility  of  the  formation 
of  groups  or  factions  of  separate  units  within  the  state  which 
shall  consider  that  their  economic  interests  demand  their  with- 
drawal from  the  federation.  Such  a  division  occurred  in  the 
United  States  in  1861,  and  was  possible  in  Germany  in  the 
religious  agitation  of  the  Bismarckian  period. 


Chap.  I.    Statistics  and  Illustrative  Citations 

1 
AREA  AND  POPULATION  OF  THE  CHIEF  STATES  MENTIONED 


AHEA,  SQUARE 
MILES 

POPULATION 

British  Empire  (from  Whitaker's  Almanac) 
In  Europe   

121,512 

45,878,500 

In  Asia                        .          

2,187,550 

323,158,000 

3,618,245 

49,458,150 

In  North.  America 

3,893,020 

7,458,000 

8,600 

50,000 

12,300 

1,730,000 

In  South  America           .          .          ... 

97,800 

314,000 

In  Australasia  

3,214,685 

6,240,000 

France             

13,153,712 
207,076 

434,286,650 
39,500,000 

200 

275,000 

Indo-China         .... 

310,000 

17,000,000 

Africa   

3,812,200 

36,000,000 

America    

35042 

410000 

Oceania     

9,141 

110,000 

Germany    

4,373,459 
208,780 

93,295,000 
65,000,000 

Dependencies  i  Africa        

910,150 

13,000,000 

Asia  (Kiao-chow)    .     .     . 
Pacific  . 

117 
96,145 

60,000 
450.000 

Italy  (including  adjacent  islands)  .... 
Dependencies  *   Tripoli  

1,215,192 

110,623 
410,000 

78,510,000 

34,700,000 
1,200,000 

Eritrea  

87,500 

300,000 

United  States  (excluding  Alaska)    .... 
Alaska     

608,123 

2,974,159 

590,884 

36,200,000 

100,000,000 
65,000 

Hawaii    

6,449 

200,000 

207 

12,000 

Philippines  .                    

121,400 

8,200,000 

3,600 

1,125,000 

Panama  Zone  

400 

125,000 

3,697,099 

109,727,000 

NOTE.  —  The  statistics  in  the  above  tables  are  compiled  from  the  stand- 
ard works  of  reference,  as  encyclopedias,  almanacs,  year  books,  etc. 

15 


16      AN   INTRODUCTION  TO   THE   STUDY   OF   GOVERNMENT 


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CHAPTER  II 
SOVEREIGNTY  AND  THE  CONSTITUTION 

SOVEREIGNTY  is  the  supreme  power  of  the  state  which  is 
exercised    by    its    government    over    its    territory  gover- 
and    people.     The    sovereign    is    that    person    or  eigntyand 
body  of  persons  in  whom  this  supreme  power  of  eign?01 
the  state  is  vested. 

I.   SOVEREIGNTY 

In  ancient  systems  of  government  the  location  of  the  sover- 
eign and  of  the  sovereignty  was  relatively  simple.  The  mon- 
arch whose  command  constituted  the  law  of  the 
land  held  in  his  own  hands  the  supreme  power  of 
the  state.  Thus,  in  the  Asiatic  despotisms  the  will  of  the 
despot  was  the  supreme  power  of  the  state  over  all  its  mem- 
bers. The  power  of  the  sovereign  was  identical  with  the 
power  of  the  state.  In  certain  modern  democratic  govern- 
ments, too,  the  location  of  the  sovereign  and  of  sovereignty  is 
not  a  difficult  problem.  In  England,  for  example,  no  political 
power  exists  above  the  combined  King,  Lords,  and  Commons. 
Any  measures  to  which  they  give  their  sanction  become  ipso 
facto  the  fundamental  and  unquestionable  law  of  the  state. 
Their  sovereignty  is  supreme.  Likewise  in  France,  if  the  two 
houses  of  the  state  legislature  act  together  in  a  National  As- 
sembly, their  power  is  supreme.  Any  laws  issued  by  this 
National  Assembly  constitute  the  supreme  and  unquestionable 
law  of  the  state. 

In  certain  types  of  democratic  government,  however,  as  the 

federative  and  confederate  governments,  the  problem  is  more 

difficult.     In  our  own  system  of  government,  for  example,  a 

general  notion  exists  that  the  sovereignty  is  in  the  hands  of 

c  17 


18      AN   INTRODUCTION  TO   THE   STUDY  OF   GOVERNMENT 

the  people.  But  is  there,  under  our  system,  any  machinery 
in  the  government  by  which  the  people  can  exercise  directly 
the  supreme  power?  Is  not  the  system  rather  one  by  which 
the  exercise  of  sovereignty  is  from  time  to  time  delegated 
absolutely  for  fixed  periods  to  certain  bodies  of  men?  It  is 
a  fact  that  in  the  United  States  the  power  to  promulgate  fun- 
damental law  resides  in  a  combination  of  two  thirds  of  both 
houses  of  Congress  and  the  legislatures  of  three  fourths  of  the 
commonwealths.  Only  measures  sanctioned  by  these  bodies 
become  the  will  of  the  state,  which  must  be  accepted  by  all 
under  the  jurisdiction  of  the  state.  In  other  words,  the  su- 
preme power  of  our  state  resides  in  bodies  of  persons  delegated 
from  time  to  time  primarily  for  the  business  of  ordinary  legis- 
lation and  only  secondarily  with  the  idea  that  they  may  be 
impiica-  called  upon  to  act  hi  their  sovereign  capacity, 
tions  of  The  notion  of  sovereignty  implies  two  things, 

sovereignty,    impendence  and  unity. 

Sovereignty  implies  complete  independence.  The  freedom 
1.  inde-  from  any  restrictions  placed  upon  its  scope  by  any 
pendence.  external  or  internal  agency  must  be  absolute. 

The  reason  for  this  is  easily  understood.  Sovereignty  which 
is  open  to  restrictions  of  any  kind  is  a  contradiction  in  terms, 
for  sovereignty  is  the  supreme  power.  If  supreme  power  is 
restricted,  the  supreme  power  is  at  once  transferred  to  that 
which  imposes  the  restrictions. 

Take  a  concrete  example  to  illustrate  the  meaning  of  this. 
Cuba  has  been  declared  a  free  and  independent  state :  it  main- 
tains its  own  government,  has  its  own  foreign  representatives, 
and  receives  recognition  from  other  states.  Yet  the  United 
States  has  caused  to  be  inserted  in  the  Cuban  constitution  the 
following  proviso:  "That  the  government  of  Cuba  consents 
that  the  United  States  may  exercise  the  right  to  intervene 
for  the  protection  of  Cuban  independence,  the  maintenance 
of  a  government  adequate  for  the  protection  of  life,  property, 
and  individual  liberty,  and  for  discharging  the  obligations 
with  respect  to  Cuba  imposed  by  the  Treaty  of  Paris  on  the 


SOVEREIGNTY  AND   THE   CONSTITUTION  19 

United  States,  now  to  be  assumed  and  undertaken  by  the 
government  of  Cuba."  Upon  this  provision  the  United  States 
has  already  acted  once  (1906).  Can  it  be  consistently  main- 
tained in  view  of  the  above  facts  that  Cuba  as  a  state  possesses 
sovereignty?  Is  it  not  rather  true  that  the  supreme  power, 
the  power  of  last  resort,  in  Cuba  lies  outside  of  the  state  ? 

The  notion  of  sovereignty  implies  also  complete  and  absolute 
unity.     In  theory  it  is  inconceivable  that  sovereignty  can  be 
divided  in  a  state,  that  one  section  or  organization          . 
within  a  state  shall  possess  a  part  of  the  sovereign 
power  separate  from  the  sovereignty  of  the  whole  state. 

This  implication  in  the  conception  of  sovereignty  follows 
naturally  from  the  proposition  that  sovereignty  implies  com- 
plete independence.  If  a  portion  of  sovereignty  be  reserved 
by  any  section  or  organization  within  a  state,  it  follows  that 
the  sovereignty  of  the  whole  state  is  restricted  by  just  that 
portion.  For  the  reasons  we  have  already  given,  any  restric- 
tion upon  the  state's  sovereignty  is  logically  inconceivable; 
hence,  it  is  equally  true  that  a  division  of  sovereignty  in  the 
state  is  inconceivable. 

An  explanation  of  sovereignty  as  applied  to  the  federal 
state  will  clear  up  the  only  difficulty  in  understanding  this 
unity.     In  the  federal  state  we  learned  that  certain       . 
governmental  powers  were  reserved  by  the  com-  sovereignty 
ponent  units  of  the  state  and  were  exercised  by  in  federal 
such   units  free  from  the   control  of  the   central 
organization.     Without  explanation,  it  might  be  thought  that 
this  condition  destroyed  the  unity  of  sovereignty.     It  must 
be  remembered,  however,  that  the  state,  by  virtue  of  its  sover- 
eignty (supreme  power),  can  establish  and  distribute  the  powers 
of  government  as  it  wills.     Indivisible  and  independent  sover- 
eignty is  an  attribute  of  the  state  and  not  of  the  government. 
The  governmental  system  is  but  an  element  in  the  state ;   the 
sovereignty  of  the  state  resides  above,  beyond,  and  superior 
to  such  system.     The  distribution  of  governmental  powers, 
then,  does  not  constitute  a  division  of  sovereignty,  but  merely 


20      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

an  administrative  convenience  of  government  under  the  com- 
plete control  of  the  ultimate  independent  unified  sovereignty 
of  the  whole  state. 

From  the  foregoing  discussion  of  sovereignty,  the  importance 
of  this  element  in  the  state  must  be  evident.  By  virtue  of 
importance  ^s  sovereignty  the  state  determines  its  governmental 
of  sover-  system,  the  relations  between  individuals  and  itself, 
eignty.  ^Q  relations  between  itself  and  other  states.  Sover- 
eignty underlies  the  fundamental  nature  of  the  state.  Be 
the  state  large  or  small,  autocratic  or  democratic,  sovereignty 
is  always  the  supreme  power  which  it  wields  over  its  members, 
a  power  free  from  interference  internal  or  external  and  com- 
pletely unified  within  itself. 

II.   CONSTITUTION 

The  body  of  principles  by  which  the  practical  application 
or  exercise  of  the  sovereignty  of  a  state  is  deter- 
tion:  defi-     mined  is  known  as  the  constitution, 
nition  and          Inasmuch  as  the  sovereignty  of  a  state  is  exer- 
cised through  the  system  of  government,  the  chief 
province  of  the  constitution  is  to  define  this  system  of  gov- 
ernment.    Hence,  the  constitution  must  outline  the  practical 
organization  and  machinery  of  government,  the  functions  of 
the  various  agencies  of  government,  and  the  relations  between 
the  governing  bodies  and  those  governed. 

More  narrowly,  then,  we  may  define  the  constitution  as  a 
collection  of  principles  providing  for  the  organization  and 
operation  of  government,  and  for  the  adjustment  of  the  rela- 
tions between  governing  bodies  and  the  governed. 

A  constitution  may  be  written  or  unwritten.     It  may  be 

.  a   single    document,  like    the    constitution    of    the 

unwritten       United  States,  or  it  may  be  a  combination  of  legal 
constitu-        precedent,  individual  bills  and  grants,  and  immemo- 
rial customs,  like  the  constitution  of  England. 

The  distinction  between  a  constitution  that  is  written  and 


SOVEREIGNTY   AND   THE    CONSTITUTION  21 

a  constitution  that  is  unwritten  is  not  important.  In  the 
case  of  all  written  constitutions  that  have  lasted  for  any  con- 
siderable period,  judicial  interpretations  and  acknowledged 
customs  outside  of  the  written  document  have  become  an 
essential  part  of  the  organization  and  operation  of  government. 
Thus  to  a  certain  extent  it  is  true  that  no  constitution  is  wholly 
written. 

On  the  other  hand,  in  the  case  of  countries  which  have  not 
a  single  document  called  a  constitution,  .  a  large  proportion  of 
the  fundamental  principles  which  would  be  embodied  in  such 
a  document  is  actually  embodied  in  various  separate  acts 
decreed  by  the  sovereign  body.  Hence  it  may  be  said  that 
to  a  considerable  extent  all  constitutions  are  written  constitu- 
tions. 

Furthermore,  one  constitution  is  of  no  more  authority  than 
another.  With  the  early  history  of  written  constitutions  it 
was  commonly  thought  that  these,  by  defining  in  precise  and 
unmistakable  terms  the  organization,  functions,  and  operation 
of  government,  insured  a  greater  degree  of  protection  to  the 
governed.  It  was  believed  that  governments  would  be  checked 
in  their  tendencies  to  encroach  upon  the  rights  of  constituents. 
Experience  has  proved,  however,  that  whether  written  or 
unwritten  the  constitution  merely  expresses  the  will  of  the 
sovereign  power  behind  itself,  and  that,  if  the  sovereign  power 
actually  resides  in  the  people  or  their  representatives,  there 
can  be  no  encroachment  under  either  form  of  constitution. 

The  parent  of  written  constitutions  in  the  modern  state  is 
the  constitution  of  the  United  States  of  America.  This  con- 
stitution was  the  work  of  a  convention  in  1787  to 

.  .    .    Example  of 

organize   a  government  to  replace  that   provided  a  written 


by  the  Articles  of  Confederatipn  under  which  the 
colonies  had  been  loosely  joined  since  1781.     The 
success  of  the  convention  in  its  task  was  such  that  this  consti- 
tution, termed  by  Gladstone  "the  most  wonderful  work  ever 
struck  off  at  a  given  time  by  the  brain  and  purpose  of  man," 
has  not  only  continued  to  be  the  foundation  of  our  government 


22      AN  INTRODUCTION  TO  THE   STUDY  OF   GOVERNMENT 

for  more  than  a  century,  but  has  served  as  the  inspiration  for 
a  series  of  written  constitutions  in  other  states. 

The  great  example  of  the  unwritten  constitution  is  that  of 
England.     Among  the  various  elements  that  form  this  con- 
stitution a  distinction  in  kind  may  be  made,  but 
unwritten°     no    distinction    hi    importance.     Those    elements 
constitu-        which  exist  by  virtue  of  tradition  and  custom  are 
equally   a   part   of   the   constitution   with   epoch- 
making  compacts  between  the  Crown  and  the  people,  or  with 
great  reform  measures  of  Parliament. 

A  study  of  the  constitution  of  England  involves  an  inti- 
mate   knowledge    of    existing    institutions    which 

Prominent       .  , ,     .  ...  , . . .  ,  T, 

elements  in  have  their  origin  in  tradition  and  custom.  For 
English  con-  example,  the  English  cabinet  is  not  provided  for  or 
recognized  in  any  authoritative  written  document. 

It  involves,  in  the  second  place,  a  knowledge  of  written  docu- 
ments of  the  nature  of  compacts  between  opposing  political 
forces  in  the  state.  To  illustrate  such  compacts,  we  may 
select  the  Magna  Charta  (1215),  commonly  called  the  founda- 
tion of  English  liberties,  which  among  other  things  provides 
(a)  a  careful  definition  of  feudal  obligations,  (6)  regulations 
respecting  courts  of  law,  (c)  restrictions  upon  the  power  of 
extraordinary  taxation,  (d)  proper  trial  by  law,  and  (e)  honest 
administration  of  justice  in  courts  of  law. 

Further,  a  study  of  the  English  constitution  involves  a  ref- 
erence to  the  statutes.  For  example,  the  Habeas  Corpus  Act 
(1679),  the  Bill  of  Rights  (1689),  enacting  in  detail  the  rights 
and  liberties  of  the  people,  and  the  various  reform  acts,  all 
form  a  part  of  the  constitution. 

Again,  such  a  study  involves  an  acquaintance  with  some  of 
the  great  judicial  decisions  which  have  established  precedent. 
The  decisions  on  the  Prerogative  of  the  Crown  and  on  the 
privileges  of  the  House  of  Parliament  and  of  the  members 
thereof  may  be  cited  as  examples. 

And  lastly,  such  a  study  involves  familiarity  with  parlia- 
mentary precedents.  Such  a  familiarity  can  only  be  gained 


SOVEREIGNTY  AND   THE   CONSTITUTION  23 

by  reference  to  certain  Committee  Reports,  and  debates  and 
proceedings. 

A  comparison  of  the  two  types  of  constitution  will  reveal 
certain    advantages    and    certain   weaknesses   in   each.    The 
written    constitution   lends   a    certain   definiteness 
and  stability  to  the  governmental  system.     Where  Advantages 
the  province  and  functions  of  the  governing  body  vantages^! 
are  carefully  set  forth  in  a  written  document,  it  written  and 
is  not  easy  for  such  a  body  to  exceed  its  bounds  ^^^^ 
without  the  knowledge  of  the  governed ;  and  where  tions. 
the  constitution  is  relatively  difficult  to  alter,  as 
is  usually  the  case,   changes  hi  the  fundamental  provisions 
for  government  cannot  be  made  to  suit  a  transient  whim. 
On  the  other  hand,  written  constitutions  have  been  criticised 
as  tending  to  leave  inadequate  room  for  the  development  of 
the  state.     Written  constitutions,  difficult  to  alter  or  amend, 
are  rapidly  outgrown,  but  cannot  easily  be  adapted  to  new 
conditions.     By  a  written  constitution,  it  is  alleged,  an  attempt 
is  made  to  incorporate  in  one  document  the  principles  of  gov- 
ernment for  a  state  for  all  time,  taking  no  account  of  what 
the  future  may  bring  forth. 

The  main  advantage  of  the  unwritten  constitution  lies  in  the 
fact  that  the  state  is  able  by  ordinary  processes  to  adapt  its 
system  to  changed  conditions.  Unwritten  constitutions  are 
themselves  continuously  developing  to  keep  pace  with  the 
development  of  the  state.  The  danger  in  the  unwritten  consti- 
tution, however,  lies  in  this  very  adaptability,  for  a  radical 
element  in  the  state  may  conceivably  carry  the  constitution 
beyond  what  conditions  throughout  the  whole  state  warrant, 
and  thus  do  incalculable  damage.  Again,  in  unwritten  con- 
stitutions, the  possibility  of  serious  misunderstanding  is  ever 
present,  for,  in  such  a  vast  complication  of  tradition-made, 
custom-made,  judicial,  and  parliamentary  sources,  it  is  possi- 
ble to  find  support  for  various  interpretations  of  particular 
features. 

Whatever  the  theoretical  advantages  or  disadvantages,  the 


24      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

written  constitution  has  met  with  favor  in  democratic  states 
outside  of  England.  With  the  single  exception  of  Hungary  — 
People  favor  an(^  ^is  is  sometimes  classed  as  having  a  written 
written  con-  constitution  —  all  the  leading  states  to-day  have 

written  constitutions.  The  people  at  large  have 
undoubtedly  been  influenced  by  their  belief  that  their  interests 
and  fundamental  rights  are  better  safeguarded  by  the  written 
constitution.  It  is  noteworthy,  too,  that  no  state  which  has  once 

adopted  a  written  constitution  has  ever  been  satisfied 
uisites'of4  <  subsequently  with  the  other  kind. 


Three  essential  requisites  of  a  good  written  con- 
stitution are  breadth,  brevity,  and  definiteness. 
A  constitution  must  be  broad  in  its  scope,  because  it  must  in- 
clude an  outline  of  the  organization  of  government  for  the  whole 
state.     A  statement  of  the  province  and  functions  of 
government,  and  of  the  relations  between  the  govern- 
ing bodies  and  the  governed,  requires  a  comprehensive  document. 
On  the  other  hand,  such  an  outline  for  the  successful  constitu- 
tion should  be  brief.     The  constitution  is  not  the  place  in  which 

.        the  details  of  organization  should  be  set  forth.     In 

2.  Brevity.  .  •  -          . 

complex  governments  of  modern  states  a  recital  of 

such  details  would  require  very  great  length,  and  would  ruin 
the  flexibility  with  which  governments  can  change  the  details 
of  their  organization  to  adapt  themselves  to  new  conditions. 

Lastly,  the  constitution  must  be  definite.  In  a  statement  of 
principles  underlying  the  essential  nature  of  a  state,  any  vague- 

3.  Definite-    ness  which  may  lead  to  opposite  interpretations  of 
ness.  essential    features   may    cause    incalculable    harm. 
Civil  war  and  disruption  of  the  state  may  conceivably  follow 
from  ambiguous  expression  in  a  constitution. 

The  material  in  a  constitution  may  be  classified  under 
Classifica-  three  heads  :  first,  material  defining  the  rights 
tion  of  an(j  liberties  of  individuals  ;  second,  material 

material  m  .  ', 

a  constitu-  outlining  the  organization  and  powers  of  the  govern- 
tion.  ment;  and  third,  material  providing  the  means  of 

altering  or  amending  the  constitution  itself. 


SOVEREIGNTY   AND   THE    CONSTITUTION  25 

One  part  of  a  good  constitution  has  to  do  with  the  rights  and 
liberties  of  individuals.     The  notion  that  individuals  as  such 
could  possess  rights  and  liberties,  privileges  and  im- 
munities, free  from  any  possible  interference  by  the 
government,  is  an  outgrowth  of  modern  liberalism,  rights  and 
Such  a  conception  is  directly  due  to  the  different 
relations  which  are  now  acknowledged  to  exist  be- 
tween a  state  and  its  government. 

In  former  times,  government  and  the  state  were  identical 
with  respect  to  sovereignty  —  in  other  words,  the  government 
was  the  state.  Thus  the  government  then  held  supreme  power. 
The  conception  of  a  sphere  of  rights  and  liberties  of  the  indi- 
vidual over  which  the  government  had  no  jurisdiction  was  un- 
known. At  the  present  day,  however,  government  is  recog- 
nized as  merely  an  element  of  the  state,  an  expression  of 
the  state's  will  for  the  political  organization  of  the  people. 
Sovereignty  is  seen  to  belong  not  to  government,  but  to  the 
state  which  is  behind  and  responsible  for  government.  The 
state,  therefore,  by  virtue  of  its  sovereignty,  in  the  constitution 
which  provides  for  government  may  directly  provide  also  cer- 
tain spheres  in  which  the  individual  is  free  from  the  operation 
of  government.  Thus  the  state,  by  virtue  of  its  supreme  power, 
insures  by  constitutional  guarantees  the  liberty  of  the  individual 
from  encroachments  of  government. 

No  generalization  with  respect  to  the  specific  rights  and 
liberties  thus  guaranteed  to  the  individuals  in  constitutions  can 
be  made.  As  men  grow  in  political  consciousness,  more  liberty 
is  naturally  demanded  and  granted.  Thus  the  rights  and 
liberties  of  the  Englishman  under  King  John  would  be  con- 
sidered wholly  inadequate  for  the  Englishman  of  to-day. 
Furthermore,  the  people  in  different  modern  states  are  not  by 
any  means  in  the  same  stage  of  development.  The  rights 
reserved  to  the  Russian  to-day  would  not  satisfy  the  citizen 
of  this  country.  In  the  leading  states  of  the  world,  however, 
"  individual  liberty  consists  in  freedom  of  the  person,  equality 
before  the  courts,  security  of  private  property,  freedom  of 


26      AN   INTRODUCTION  TO   THE   STUDY   OF   GOVERNMENT 

opinion  and  its  expression,  and  freedom  of  conscience " 
(Burgess). 

A  second  part  of  a  good  constitution  has  to  do  with  the  or- 
ganization and  powers  of  government  for  the  state.  The 
provisions  contained  in  this  part  of  constitutions 
outlining*  uniformly  treat  certain  main  features,  but  differ 
the  organi-  in  the  detail  with  which  these  features  are  elaborated. 
Zovernment  ^e  features  which  are  uniformly  treated  include 
(1)  a  statement  of  the  general  organization  of  the 
governing  bodies,  (2)  the  distribution  of  governmental  powers 
among  the  various  departments,  (3)  a  determination  of  the 
various  agencies  of  government  with  a  description  of  the 
nature  and  extent  of  the  authority  of  each,  (4)  the  method  of 
selection  or  appointment  of  officials,  and  (5)  the  composition  of 
the  electorate. 

In  its  treatment  of  these  features,  the  constitution  of  the 
United  States  is  a  model.  It  does  not  attempt  to  cover  all 
the  details  of  the  organization  of  the  government.  It  states 
that  there  shall  be  a  Congress  with  legislative  powers,  and  it 
indicates  to  some  extent  the  organization  of  this  Congress; 
that  there  shall  be  a  President  to  execute  the  laws  passed  by  the 
Congress ;  and  that  there  shall  be  a  Supreme  Court  to  determine 
the  legality  under  the  constitution  of  laws  passed  by  Congress 
and  of  acts  of  individuals,  commonwealth  governments,  and 
federal  officials.  What  the  constitution  does  not  do  is  to  state 
in  detail  how  Congress  shall  do  its  legislative  work,  and  how 
the  President  shall  perform  his  functions,  and  how  the  Supreme 
Court  shall  exercise  its  powers.  These  things  were  wisely  left 
to  the  process  of  ordinary  law. 

A  third  and  very  important  part  of  the  constitution  deals 
with  the  methods  by  which  the  document  can  be  amended. 
3  Matter  '^^Le  importance  of  this  amending  provision  rests 
relating  to  in  the  fact  that  in  it  lies  the  possibility  of  the  ad- 
ent'  justment  of  the  constitution  to  the  development  of 
the  state. 

The  constitutions  of  some  states,  as  Italy,  do  not  contain 


SOVEREIGNTY  AND  THE   CONSTITUTION  27 

specific  provisions  for  amendment.    The  result  in  such  cases 
is  that  the  power  of  amendment  has  been  presumed  to  reside 
in  the  legislative  and  executive  bodies  as  one  of  their 
ordinary  functions,  and  the  state,  so  far  as  changing 
or  amending  its  constitution  is  concerned,  is  exactly  no  provision 
on  a  level  with  England.     Any  law  passed  by  the  f™e£*end~ 
legislature  and  approved  by  the  executive  becomes 
legal  and  constitutional,  just  as  in  England  a  measure  passed  by 
Parliament  and  signed  by  the  executive  is  legal  and  constitu- 
tional.    Hence,  although  Italy  possesses  a  written  constitution 
its  government  is  practically  on  the  basis  of  an  unwritten  con- 
stitution. 

In  other  cases,  constitutions  have  a  provision  denying  to  any 
body  in  the  state  the  power  of  amendment.  Examples  of  such 
constitutions  are  rare.  Theoretically,  however,  in 
such  cases  the  power  to  amend  the  constitution 
could  reside  only  in  the  body  which  originally  denying  the 
created  it.  Logically,  such  a  constitution  could  J^nrdnj;ent 
hardly  endure,  for  the  political,  social,  and  economic 
development  of  states  always  involves  sooner  or  later  a  change 
in  fundamental  conditions  which  can  be  adequately  met  only 
by  a  corresponding  change  in  the  fundamental  organization  of 
government.  A  constitution  which  denied  to  any  body  the 
right  to  introduce  and  bring  about  such  necessary  changes 
would  ultimately  become  so  unfitted  for  its  purposes  that  it 
would  induce  revolution. 

In  written  constitutions  having  the  amendment  provisions, 
these  provisions  differ  widely.     In  the  United  States  amend- 
ments may  be  proposed  in  one  of  two  ways :  (1)  Con- 
gress may  by  a  two-thirds  vote  in  each  house  propose   (c)  Consti- 
an  amendment;  or  (2)  the  legislatures  of  two  thirds  J^J^L^ 
of  the  states  may  petition  Congress  to  call  a  general  provisions : 
convention  for  the  purpose  of  proposing  an  amend-  ^tate^con- 
ment.     After  an  amendment  has  been  proposed,  it  stitution. 
may  be  adopted  by  one  method,  and  only  one :   it 
must  be  approved  by  two  thirds  of  both  houses  of  Congress 


28      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

and  by  the  legislatures  or  special  conventions  of  three  fourths 
of  the  states. 

Under  these  provisions  it  has  been  very  difficult  in  the  United 
States  to  amend  the  constitution.  More  than  eighteen  hundred 
amendments  have  been  offered,  but,  with  the  exception  of  the 
ten  amendments  passed  shortly  after  the  adoption  of  the  con- 
stitution, which  may  rightly  be  considered  as  an  integral  part 
of  the  original  document,  only  seven  have  been  adopted, 
and  two  of  these  (providing  for  the  income  tax  and  the  direct 
election  of  senators)  have  been  adopted  within  the  last  few 
years. 

In  European  states  the  method  of  amendment  to  the  con- 
stitution is  commonly  such  as  to  render  such  amendments 
relatively  easy.  In  France  amendments  may  be 
Amend-  passed  by  a  process  of  ordinary  legislation  by  a 
Sonsin.OV1  National  Assembly  made  up  of  the  members  of  the 
constitu-  two  houses  of  the  legislature  in  joint  session.  In 
European  *ke  German  federation  amendments  to  the  consti- 
states.  tution  are  passed  in  the  same  way  as  ordinary  legis- 

lation, with  the  proviso  that  fourteen  out  of  the  fifty- 
eight  votes  in  the  upper  house,  the  Bundesrath,  may  defeat  the 
amendment. 

The  comparative  rigidity  of  the  constitution  of  the  United 
States  has  excited  abundance  of  criticism.  For  one  thing,  it  is 
Criticism  of  P088^6  for  a  very  small  minority  of  the  people  of 
amendment  this  country  to  block  the  passage  of  an  amendment 

Fn°UnttedS  favored  by  a11  the  rest-  The  census  of  1910  shows 
states  con-  thirteen  states,  more  than  the  necessary  number  to 
stitution.  defeat  an  amendment,  having  a  population  of  about 
one  eighteenth  of  the  entire  population  of  the  United  States. 
The  legislatures  of  these  thirteen  states,  representing  but  one 
eighteenth  of  the  population  of  the  whole  country,  have  the 
power  under  the  constitution  to  defeat  the  wishes  of  the  legis- 
latures representing  seventeen  eighteenths  of  the  total  popu- 
lation. Furthermore,  the  power  of  amendment  is  placed 
in  legislative  bodies  of  the  various  states  and  of  the  central 


SOVEREIGNTY   AND   THE   CONSTITUTION  29 

government  and  not  in  the  hands  of  the  people  of  the  country 
at  large.  This  fact  has,  it  is  asserted,  resulted  in  undue  con- 
servatism and  has  created  a  condition  at  the  present  time  in 
which  the  state  has  outgrown  its  constitution.  In  general, 
the  machinery  of  amendment  is  very  unwieldy.  Washington 
rightly  advised  "to  resist  with  care  the  spirit  of  innovation  upon 
the  principles  of  the  constitution,"  but  there  is  a  limit  to  the 
degree  of  rigidity  which  is  desirable.  There  is  a  real  danger  in 
a  constitution  which  blocks  the  introduction  of  changes  based 
on  experience  and  long,  careful  deliberation. 

In  the  case  of  the  constitution  of  the  United  States,  however, 
another  method  has  been  used  to  adapt  its  provisions  to  the 
development  of  the  country.     The  Supreme  Court   Judicial  ^ 
has  interpreted  the   construction   and    application  terpretation 
of  various  provisions  of  the  constitution  as  necessity  j£J^ 
has  arisen,  and  has  established  itself  definitely  over  states  con- 
and  above  Congress  in  the  right  to  determine  whether  stitution- 
or  not  laws  are  constitutional. 

Its  decisions  and  its  "judicial  interpretations"  have  played 
a  very  important  part  in  the  history  of  this  country.  The 
federal  constitution  is  the  supreme  legal  authority  in  the  United 
States;  hence  the  meaning  of  each  provision,  even  of  each 
separate  word,  is  of  the  utmost  significance.  Although  its 
general  principles  are  simple  and  comprehensible,  the  increasing 
complexity  of  government  and  social  conditions  has  given  rise 
to  grave  problems  concerning  the  particular  meaning  of  clauses 
in  the  document,  or  concerning  the  relative  scope  of  two  ap- 
parently conflicting  statements.  In  its  task  of  final  judgment 
as  to  the  meaning  and  application  of  the  constitution,  the 
Supreme  Court  has  taken  extraordinary  precautions.  Only  as 
specific  cases  are  brought  before  it  does  the  court  attempt  an 
interpretation,  and  judicial  precedent  is  consulted  wherever 
possible.  As  a  result  of  the  court's  decisions  through  many 
years,  gradually  a  logical  theory  of  the  constitution  and  laws 
has  been  evolved,  which  can  be  developed  from  generation  to 
generation.  The  Supreme  Court  in  its  decisions  has  formulated 


30      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

a  fairly  coherent  body  of  doctrine  with  respect  to  the  construc- 
tion and  application  of  the  provisions  of  the  federal  constitu- 
tion. In  this  manner  the  judiciary  has  played  an  important 
part  in  adapting  our  constitution  to  the  development  of  the 
state.1 

1  Cf .  chapter  on  the  Judiciary. 


Chap.  II.    Statistics  and  Illustrative  Citations 

EXAMPLE  OF  A  STATE  WHOSE  SOVEREIGNTY  is  RESTRICTED, 
AND  THE  NATURE  OF  THE  RESTRICTION 

Cuba.  Sovereignty  restricted  (1901)  by  the  Platt  amend- 
ment, incorporated  in  the  United  States  Army  Appropriation 
Act  of  1901,  and  accepted  by  Cuba  as  an  addition  to  its  con- 
stitution. The  following  letter  contains  the  provisions  added : 

HAVANA,  June  13,  1901. 

Honorable  MILITARY  GOVERNOR  OF  CUBA. 

HONORABLE  SIR  :  Replying  to  your  official  letter  dated 
on  the  eighth  (8th),  whereby  you  forward  to  the  undersigned 
the  report  of  the  Honorable  the  Secretary  of  War,  dated  May 
31st  last,  I  have  the  honor  to  advise  you  that  at  the  session 
held  yesterday,  June  12th,  by  the  Constitutional  Convention, 
there  was  taken  the  following 

RESOLUTION 

The  Constitutional  Convention,  in  conformity  with  the 
order  from  the  military  governor  of  the  island,  dated  July 
25th,  1900,  whereby  said  convention  was  convened,  has  deter- 
mined to  add,  and  hereby  does  add,  to  the  Constitution  of  the 
Republic  of  Cuba,  adopted  on  the  21st  of  February  ultimo,  the 
following 

APPENDIX 

ARTICLE  I.  The  Government  of  Cuba  shall  never  enter 
into  any  treaty  or  other  compact  with  any  foreign  power  or 
powers  which  will  impair  or  tend  to  impair  the  independence 
of  Cuba,  nor  in  any  way  authorize  or  permit  any  foreign  power 
or  powers  to  obtain  by  colonization  or  for  naval  or  military 
purposes,  or  otherwise,  lodgment  or  control  over  any  portion 
of  said  island. 

ART.  II.  That  said  Government  shall  not  assume  or  con- 
tract any  public  debt  to  pay  for  the  interest  upon  which,  and 
to  make  reasonable  sinking-fund  provision  for  the  ultimate 

31 


32      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

discharge  of  which  the  ordinary  revenues  of  the  Island  of  Cuba, 
after  defraying  the  current  expenses  of  the  Government,  shall 
be  inadequate. 

AKT.  III.  That  the  Government  of  Cuba  consents  that 
the  United  States  may  exercise  the  right  to  intervene  for  the 
preservation  of  Cuban  independence,  the  maintenance  of  a 
government  adequate  for  the  protection  of  life,  property,  and 
individual  liberty,  and  for  discharging  the  obligations  with 
respect  to  Cuba  imposed  by  the  Treaty  of  Paris  on  the  United 
States,  now  to  be  assumed  and  undertaken  by  the  Government 
of  Cuba. 

ART.  IV.  That  all  the  acts  of  the  United  States  in  Cuba 
during  the  military  occupancy  of  said  island  shall  be  ratified 
and  held  as  valid,  and  all  rights  legally  acquired  by  virtue  of 
said  acts  shall  be  maintained  and  protected. 

ART.  V.  That  the  Government  of  Cuba  will  execute,  and, 
as  far  as  necessary,  extend  the  plans  already  devised,  or  other 
plans  to  be  mutually  agreed  upon,  for  the  sanitation  of  the 
cities  of  the  island,  to  the  end  that  a  recurrence  of  epidemic  and 
infectious  diseases  may  be  prevented,  thereby  assuring  pro- 
tection to  the  people  and  commerce  of  Cuba,  as  well  as  to  the 
commerce  of  the  Southern  ports  of  the  United  States  and  the 
people  residing  therein. 

ART.  VI.  The  Island  of  Pines  shall  be  omitted  from  the 
boundaries  of  Cuba  specified  in  the  Constitution,  the  title  of 
ownership  thereof  being  left  to  future  adjustment  by  treaty. 

ART.  VII.  To  enable  the  United  States  to  maintain  the 
independence  of  Cuba,  and  to  protect  the  people  thereof,  as 
well  as  for  its  own  defense,  the  Cuban  Government  will  sell 
or  lease  to  the  United  States  the  lands  necessary  for  coaling  or 
naval  stations,  at  certain  specified  points,  to  be  agreed  upon 
with  the  President  of  the  United  States. 

ART.  VIII.  The  Government  of  Cuba  will  embody  the 
foregoing  provisions  in  a  permanent  treaty  with  the  United 
States. 

With  the  testimony  of  our  greatest  consideration,  very  re- 
spectfully, the  President, 

DOMINGO  M^NDEZ  CAPOTE. 

(From  "Translation  of  the  Proposed  Constitution  for  Cuba, 
the  Official  Acceptance  of  the  Platt  Amendment,  and  the  Elec- 
toral Law."  Publ.  by  the  Division  of  Insular  Affairs,  War 
Department,  Nov.  1901.) 


CHAPTER  III 
THE  ORGANIZATION  OF  GOVERNMENT 

IT  is  commonly  agreed  among  political  thinkers  that  govern- 
mental activities  are  of  three  kinds :  legislative,  executive,  and 
judicial.     The  legislative  activities  include  the  for- 
mation  of  and  deliberation  upon  the  commands  of  tai  activities 
the  government;    the  executive  activities  include  ^tjree 
the  enforcement  and  administration  of  the  com- 
mands of  the  government  throughout  the  state;    and  the 
judicial  activities  include  the  decision  respecting  the  construc- 
tion and  application  of  the  commands  of  the  government. 

Although  this  distinction  between  the  classes   of   govern- 
mental activities  was  recognized  by  Aristotle  and  reiterated 
by  Cicero,  the  separation  of  governmental  powers  Theory  of 
to  correspond  to  these  classes  of  activities  was  not  correspond- 
clearly  made  in  ancient  or  medieval  political  society,   ^"f1^*- 
From  early  times  the  executive  had  concentrated   emmentai 
in    his    own    hands    all   political    powers.     What  P°wers- 
semblance   of    separation    in    the    exercise    of    these   powers 
appeared   was   due    merely   to    administrative    convenience. 
King  Solomon  himself  made,  executed,  and  decided  the  laws  of 
his  people.     The  ultimate  legislative,  legal,  and  executive  power 
of  Louis  XIV  in  seventeenth-century  France  was  unquestioned, 
however  great  the  number  of  departments  required  by  the 
complexity  of  government. 

The  growth  of  liberal  ideas  in  relatively  modern  times  is 
responsible  for  emphasizing  the  necessity  of  separating  the 
powers  of  the  government  among  mutually  independent  de- 
partments. The  argument  that  only  by  such  separation  could 
the  liberty  and  highest  interests  of  the  people  be  conserved 
proved  powerful  in  those  states  where  the  people  were  intelligent 
D  33 


34      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

and  progressive.  A  Frenchman,  Montesquieu,  in  his  book 
"I/Esprit  des  Lois"  (The  Spirit  of  Laws),  1748,  did  more  than 
any  other  person  to  popularize  the  theory.  He  reasoned  that 
if  a  single  agent  were  intrusted  with  the  power  both  to  make 
the  laws  and  to  execute  the  laws,  that  agent  would  be  strongly 
tempted  to  make  tyrannical  laws  and  to  execute  such  laws  in  a 
tyrannical  manner.  And  it  is  equally  true  that  if  the  same 
agent  makes  the  laws  and  judges  of  questions  of  obedience  to  the 
laws,  the  life,  freedom,  and  property  of  the  individual  are  utterly 
at  the  mercy  of  this  single  agent.  And  the  third  possible 
combination,  of  the  agent  who  executes  the  laws  being  also  the 
agent  who  judges  the  application  of  the  laws,  also  gives  to  such 
agent  all  the  powers  of  a  tyrant.  According  to  Montesquieu's 
argument,  then,  no  one  agent  should  be  intrusted  with  more 
than  one  of  the  powers  of  government.  He  believed  that  the 
separation  of  powers  was  an  essential  requirement  for  the  ex- 
istence of  true  liberty  for  the  people  in  a  state. 

Associated  as  they  were  with  the  idea  of  liberty,  Montes- 
quieu's arguments  had  great  effect  just  at  the  time  when  written 

constitutions  were  first  formed.  The  people  lived 
ofPtheory°in  in  the  dread  of  the  return  of  monarchy  and  tyranny, 
constitu-  so  that  they  seized  eagerly  upon  any  theory  of 

political  organization  which  promised  to  preserve 
for  them  their  liberty.  The  constitution  of  the  United  States 
was  drawn  by  men  thoroughly  familiar  with  these  political 
theories,  and  in  so  many  words  it  is  expressly  provided  that 
(a)  "All  legislative  Powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,"  and  that  (6)  "The  executive 
Power  shall  be  vested  in  a  President,"  and  that  (c)  "The 
judicial  Power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court."  The  constitutions  of  the  various  common- 
wealths of  the  United  States  have  similar  provisions,  the  most 
forceful  statement,  perhaps,  being  in  the  constitution  of 
Massachusetts  (1780) :  "In  the  government  of  this  common- 
wealth the  legislative  department  shall  never  exercise  the  execu- 
tive and  judicial  powers  or  either  of  them ;  the  executive  shall 


THE  OKGANIZATION  OF  GOVERNMENT        35 

never  exercise  the  legislative  or  judicial  powers  or  either  of  them ; 
the  judicial  shall  never  exercise  the  legislative  and  executive 
powers  or  either  of  them,  to  the  end  that  it  may  be  a  government 
of  laws  and  not  of  men."  In  the  several  governments  in  France 
during  the  revolutionary  period  a  succession  of  constitutions 
illustrated  the  effect  of  Montesquieu's  theory,  the  most  striking 
being  the  cumbersome  constitution  of  the  year  VIII  (promul- 
gated Dec.  15,  1799)  by  which  separation  was  carried  so  far 
that  the  legislative  was  divided  into  four  independent  parts : 
the  first  (the  Council  of  State)  to  propose  laws,  the  second 
(the  Tribunate)  to  debate  upon  laws,  the  third  (the  Legislative 
Body)  to  vote  upon  laws,  and  the  fourth  (the  Senate)  to  pass 
upon  the  constitutionality  of  laws. 

Experience  has  shown,  however,  that  the  strict  and  absolute 
separation  of  the  powers  of  government  in  a  state  is  utterly 
impracticable.    A  system  by  which  the  legislative 
body   exercises   all   the    legislative   functions    and  ration  of pa 
only  the  legislative  functions,  the  executive  body  powers  un- 
all  the  executive  functions  and  only  those,  and  the 
judiciary  all  the  judicial  functions  and  only  those,  would  be 
unnatural  and  impossible.     The  state  is  a  unified  institution. 
The  separate  parts  of  its  government  are  all  closely  coordinated 
in  the  work  they  do,  just  as  the  several  members  of  the  human 
body  are  coordinated.     That  each  member  of  the  body  should 
act  entirely  independently  of  other  members  is  inconceivable; 
likewise  it  has  been  found  that  separate  and  totally  independent 
action  on  the  part  of  each  of  the  departments  of  the  government 
in  the  work  of  governing  is  not  possible. 

In  actual   practice  in  democratic    governments    we    have 
numerous  examples  of  the  intermingling  of  the  several  powers 
in  one  department.     The   most   striking   example  E^^  Jeg  of 
is  to  be  found  in  England,  where  the  cabinet  system  non-separa- 
has  resulted  in  making  the  leaders  in  the  legislative  tion  of 
body  practically  in  another  capacity  the  executive 
head  of  the  Empire.     At  the  same  time,  the  legislative  body  in 
itself  constitutes  the  highest  judicial  court  in  the  Empire,  the 


36   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

court  of  impeachment.  Thus  the  English  Parliament  holds 
within  itself  legislative,  executive,  and  judicial  power.  Further, 
in  the  practical  operation  of  our  own  government,  we  do  not 
observe  a  rigid  separation  of  powers.  The  Congress,  which 
should  strictly  be  a  purely  legislative  body,  itself  may  constitute 
a  high  court  of  impeachment,  thus  partaking  of  the  judicial 
powers.  The  executive,  by  virtue  of  his  power  of  the  pardon, 
actually  exercises  judicial  power.  Other  leading  states  present 
the  same  situation,  especially  noteworthy  in  those  states,  like 
Italy,  which  have  a  cabinet  government  modeled  after  the 
government  of  England. 

Although  the  arguments  of  Montesquieu  seem  logically 
sound,  the  evils  which  he  prophesied  have  not  resulted  from 
this  union  of  different  powers  in  one  of  the  governmental 
agencies.  Indeed,  where  the  union  of  these  powers  is  most 
strikingly  evident,  i.e.  in  England,  we  actually  find  the  liberties 
of  the  people  most  extensive.  In  our  country,  where  there  is 
a  manifest  intermingling  of  powers  upon  occasion,  we  justly 
pride  ourselves  on  the  civic  liberty  allowed  the  individual.  In 
Italy,  France,  and  Germany,  in  varying  degrees,  the  liberty  of 
the  individual  seems  assured.  The  prospects  of  tyrannical 
government  never  seemed  more  remote  than  in  the  leading 
states  of  the  world  at  the  beginning  of  this  twentieth  century. 

The  fundamental  reason  why  civic  liberty  has  been  main- 
tained, in  spite  of  the  union  of  powers  in  one  branch  of  govern- 
ment, lies  in  the  nature  of  modern  democracy.  Montesquieu 
could  not  have  imagined,  under  the  conditions  of  his  own  age, 
a  government  so  fully  responsible  to  the  people  in  all  its  depart- 
ments that  the  coalescence  of  powers  could  prove  no  danger. 
For  example,  in  England  to-day  the  influence  of  the  people 
over  their  government  is  practically  direct;  in  the  United 
States  the  influence  of  the  people  over  their  government  is  ex- 
erted at  such  frequent  intervals  (by  new  elections)  as  to  pre- 
clude the  possibility  of  tyranny.  Then  there  is  always  the 
Right  of  Revolution  —  a  moral  though  not  a  legal  Right  — 
whereby  a  people  may  rebel  to  overcome  any  effort  to  destroy 


THE  ORGANIZATION  OF  GOVERNMENT        37 

their  liberty  or  restrict  their  progress.  Government  to-day  in 
democratic  states,  whatever  its  historical  origin  may  have  been, 
is  practically  a  mutual  contract  between  the  people  and  their 
governors,  and  exists  under  such  recognized  conditions  that 
political  tyranny  has  become  an  anachronism. 

What  has  been  said  above  with  regard  to  the  impracticability 
of  separating  entirely  the  powers  -of  government  to  correspond 
to  the  activities  of  government  should  not  mislead  any  one  with 
regard  to  the  fundamental  value  of  the  theory  propounded 
by  Montesquieu.  There  is  an  essential  truth  in  the  theory, 
well  brought  out  by  Madison  in  the  Federalist:  "The  powers 
properly  belonging  to  one  department  ought  not  to  be  directly 
and  completely  administered  by  either  of  the  other  departments ; 
.  .  .  Neither  of  them  ought  to  possess,  directly  or  indirectly, 
an  overruling  influence  over  the  others  in  the  administration  of 
their  respective  powers."  The  important  point  of  this  concep- 
tion of  the  theory  lies  in  the  qualifying  words  directly  and  com- 
pletely and  overruling.  The  fact  that  one  department  may  have 
partial  agency  in,  and  control  over,  the  acts  of  other  depart- 
ments is  clearly  recognized,  but  the  independence  in  spirit  in  each 
of  the  three  departments  of  government  is  emphasized.  The 
constitutions  of  the  leading  states  in  the  world  to-day  have  been 
drawn  with  the  essential  truth  of  the  theory  of  the  separation 
of  powers  in  mind. 


CHAPTER  IV 
THE  LEGISLATIVE 

ALTHOUGH  in  theory  the  three  departments  in  the  govern- 
mental organization  are  of  equal  importance,  in  actual  practice 
Superior  ^ne  legislative  department  is  seen  to  have  the 
position  of  greatest  power.  In  all  governments,  that  depart- 
legisiative.  ment  exercises  a  measure  of  control  over  the  execu- 
tive and  judiciary,  either  by  its  office  of  allotting  funds  for  the 
expenses  of  other  departments  or  by  its  regulations  for  their 
performance  of  their  functions.  It  is  fitting,  therefore,  that  we 
should  discuss  the  legislative  department  before  any  of  the 
others. 

Under  all  constitutions  in  democratic  states  the  powers  of 
the  legislative  are  very  broad.  To  the  legislative  is  intrusted 
Powers  of  ^ne  Power  t°  consider  and  promulgate  laws,  which 
theiegisia-  power  includes  also  the  power  to  amend  or  repeal 
tive*  existing  laws,  and  in  most  cases  to  originate  by  one 

process  or  another  a  change  in  the  constitution  itself. 

In  the  ideal  democracy  so  important  a  function  as  this  could 
be  intrusted  only  to  a  deliberative  assembly  consisting  of  the 
Legislative  en^ire  body  of  citizens,  —  as  was  done  in  the  small 
body  com-  city-states  of  ancient  Greece,  and  as  is  done  at 
po^d  of°m"  Presen^  m  certain  of  the  small  cantons  of  Switzer- 
representa-  land.  In  the  great  democratic  states  of  the  present 
day,  however,  the  huge  masses  of  population 
and  the  vast  extent  of  territory  have  rendered  the  direct 
participation  of  the  whole  body  of  citizens  impossible.  To 
take  the  place  of  such  a  general  deliberative  assembly  and  to 
retain  so  far  as  practicable  the  participation  of  the  people  at 
large  in  the  legislative  functions,  various  systems  of  represen- 
tation have  been  devised  by  which  certain  individuals,  by  one 

38 


THE    LEGISLATIVE  39 

method  or  another,  are  selected  or  appointed  to  act  as  repre- 
sentatives of  the  whole  mass  of  the  people  in  the  legislative 
functions. 

I.  BICAMERAL  LEGISLATIVE  BODIES 

It  is  the  common  practice  at  the  present  day  to  have  the 
legislative  body  organized  in  two  separate  branches,  —  cham- 
bers, or  houses,  as  they  are  commonly  called.     This 
bicameral  legislature,  originating  by  a  process  of 
unconscious  evolution  out  of  the  separate  delibera-  isiative  into 
tive  assemblies  of  the  former  different  social  orders,  £^scham~ 
has  proved  in  experience  to  have  such  decided  ad- 
vantages over  a  legislature  of  a  single  chamber  that  it  has  super- 
seded the  single  chamber  (unicameral)  system  in  all  the  im- 
portant countries  of  the  world. 

To  assure  these  advantages,  however,  it  is  necessary  that  the 
two  houses  be  not  mere  duplicates  of  each  other.     It  is  obvious 
that  the  mere  division  of  the  total  number  of  rep- 
resentatives '  into    two    chambers,    where    all    the  Necessity  of 

.  1,1  difference  in 

representatives  were  chosen  under  the  same  system,  the  corn- 


would  not  operate  to  make  the  deliberation  in  one 
chamber  different  in  any  way  from  that  in  the  other  :  chambers. 
it  would  serve  only  to  retard  legislative  action. 

The  several  states  vary  widely  in  the  methods  by  which 
they  insure  a  different  character  of  representation        . 
in    the    two    legislative    chambers.    The    variance  methods  to 
is    found,    however,    mainly    in    the    composition  £J^edif~ 
of  the  upper  house  of  the  legislature;    the  com-  found  in 
position  of  the  lower  house  is  determined  in  much  uPPer 

houses  only. 

the  same  way  in  all  the  democratic  states. 

As  a  general  rule,  the  members  of  the  lower  chamber  are 
elected  directly  by  the  people,  the  state  being  divided  into 
electoral  districts  of  a  size  determined  by  the  popula-  Lower 
tion,  and  the  electors  of  each  district  voting  for  their  chambers 
representative.    The  right  to   vote,   the  suffrage,  thesamc- 
for  members  of  this  lower  house  is  commonly  liberally  extended, 


40      AN  INTKODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

thus  making  this  chamber  most  truly  popular  and  representa- 
tive of  the  masses  of  the  people  in  the  state. 

The  characteristics  of  the  composition  of  the  upper  houses 
cannot  be  dismissed  so  briefly.  In  several  of  the  more  im- 
Upper  portant  states  there  is  no  similarity  between  the 

chambers  methods  of  choice,  and  even  in  those  presenting  a 
different.  superficial  similarity  closer  examination  reveals 
vital  differences. 

In  England  the  composition  of  the  upper  house  is  unique  in 

that,  with  the  exception  of  four  jurists  appointed  for  life  by 

the  monarch  and  of  certain  church  dignitaries,  the 

sole  qualification  for  membership  is  a  peerage.     Of 

the  total  membership,  approximately  six  hundred,  the  Scotch 

peers  occupy  sixteen  seats,  the  Irish  peers  twenty-eight  seats, 

and  the  English  peers  the  remainder.     The  right  of  English 

peers  to  a  seat  in  the  House  of  Lords  is  hereditary,  bequeathed 

by  one  peer  to  his  heir. 

This  hereditary  principle  of  membership  in  the  upper  legisla- 
tive house  is  open  to  severe  criticism.  No  warrant  of  ability 
Criticism  of  &oes  wth  blood-descent.  Often  the  Lords  have 
English  sys-  shown  an  obstinate  blindness  to  the  unalterable 
course  of  history  and  have  persisted  in  trying  to 
stem  the  flow  of  liberal  government  to  insure  the  safety  of  their 
own  selfish  interests,  with  the  result  that  in  recent  years  the 
state  has  taken  measures  to  shear  away  much  of  their  power, 
giving  them  as  a  body  only  a  right  to  retard  the  action  of  the 
lower  house.  And  yet  strong  arguments  have  been  advanced 
to  show  that  the  Lords  are  capable  of  being  an  effective  part  of 
the  government  of  England,  in  that  their  property  is  of  various 
kinds,  city,  country,  and  commercial,  and  in  that,  as  they  are 
dependent  upon  no  party  or  parties  for  election,  their  judgment 
is  less  liable  to  be  prejudiced  by  ulterior  motives  than  the  judg- 
ment of  members  of  the  lower  house. 

The  hereditary  principle  is  not  used  for  the  determina- 
tion of  the  entire  membership  of  the  upper  house  in  any  other 
great  state.  In  Austria  and  Hungary  a  part  of  the  members 


THE   LEGISLATIVE  41 

are  hereditary  nobles,  but  seated  with  them  and  possessed 
of  equal  rights  are  members  appointed  for  life  by  the  monarch. 
In  Spain,  together  with  a  proportion  of  nobles  other  states 
having  hereditary  membership,  are  members  ap-  with 
pointed  for  life  by  the  monarch,  and  a  certain  bers  or 
number  of  elected  members.  In  Italy,  outside  of  members 

,,  -     . ,        ,  ,       ,        ,  ,        appointed 

the   princes   of   the   blood  who   possess  seats  by  by  the 
right,    the   members  of  the  upper  house  are    all  monarch, 
appointed  by  the  monarch  subject  to  the  approval  of  the  upper 
house  itself.     In  Denmark  a  small  proportion  of  the  members 
is  nominated  by  the  monarch  and  the  others  are  elected. 

The  upper  house  (Bundesrath)  in  the  German  Empire  is  of 
curious  composition,  representing  the  conditions  under  which 
the  German  Empire  originated.     The  Bundesrath 
is  composed  of  members  appointed  by  the  princes 
of  the  various  states  in  the  federation.     The  members  of  the 
Bundesrath  are  wholly  responsible  to  their  respective  princes 
and  have  no  hereditary  right  to  membership.     The  seats  are 
distributed   among  the   component  members   of  the  federal 
Empire  as  the  votes  were  distributed  in  the  old  German  con- 
federation, Bavaria,  however,  having  six  seats  instead  of  four. 

Outside  of  the  states  specifically  named  above,  the  members 
of  the  upper  houses,  as  of  the  lower,  are  elected  to  their  seats. 
Thus    the    constitutions    of    France,    Switzerland, 
Belgium,     Norway,     Sweden,     Holland,     and    the  all  have 
United  States  provide  for  the  election  of  members  members 

r  , ,  i_  elected. 

of  the  upper  house. 

In  those  countries  wherein  members  of  both  legislative  cham- 
bers are  elected,  the  logical  absurdity  already  mentioned  of 
making  the  upper  chamber  a  mere  duplication  of  Necessity 
the  lower  has  led  to  arbitrary  distinctions  in  the  for  elective 
method  of  election  of  members,  in  the  constituencies  houses  of 
represented  by  members,  in  the  qualifications  of  insurmg dif- 

,.  i  i   .  .      «?          t-  ference  be- 

candidates,  and  in  the  tenure  of  office  of  members,  tween  the 
The  elections  for  the  lower  chamber  may  be  direct, 
for  the  upper  may  be  indirect;    the  constituency 


42      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

for  the  members  of  the  lower  chamber  may  be  small,  for  those 
of  the  upper  chamber,  large;  the  qualifications  of  candidates 
for  membership  in  the  lower  may  be  markedly  different  from 
those  of  candidates  for  the  upper ;  the  tenure  of  office  for  the 
members  of  the  lower  may  be  some  years  shorter  than  that 
for  the  members  of  the  upper. 

The  members  of  one  chamber  may  be  elected  by  direct 
election  and  those  of  the  other  chamber  by  indirect  election. 
Direct  and  *n  otner  words,  the  voter  may  be  allowed  to  choose 
indirect  directly  the  man  who  shall  represent  him  in  the 
elections.  iower  chamber,  but  may  not  be  allowed  to  vote  directly 
for  the  one  who  shall  represent  him  in  the  upper  chamber.  In 
the  latter  case,  he  may  be  allowed  to  choose  an  intermediary 
who  in  conference  with  other  intermediaries  shall  select  the 
representative. 

Such  is  the  system  in  France.  The  members  of  the  lower 
house,  or  Chamber  of  Deputies,  are  chosen  by  the  direct  vote 
of  the  people;  the  members  of  the  upper  house,  the  senate, 
are  chosen  by  indirect  vote  in  the  following  way :  the  senators 
representing  each  departement  (a  departement  is  the  largest 
administrative  division  in  France)  are  chosen  by  a  body  com- 
posed of  officials  originally  elected  by  the  people,  namely,  the 
deputies  of  the  departement,  the  members  of  the  general  council 
of  the  departement,  members  of  the  councils  of  the  various 
districts  (arrondissements)  of  the  departement,  and  delegates 
elected  by  the  commune  councils,  these  last  named  being  in 
the  majority.  In  the  United  States,  until  the  passage  of  an 
amendment  to  the  constitution  providing  for  the  election  of 
senators  by  direct  vote  (1912),  the  members  of  the  upper  house 
of  the  national  legislature  were  chosen  by  the  legislatures  of 
the  various  commonwealths. 

The  intent  of  the  system  of  indirect  elections  is  to  remove  the 
Purpose  of  election  of  one  branch  of  the  legislature  from  imme- 
indirect  diate  popular  control.  Undoubtedly  the  idea  sprang 
elections.  £rom  ft  Distrust  of  the  people.  It  was  the  theory  that 
a  higher  grade  of  men  would  be  selected  for  the  upper  house 


THE   LEGISLATIVE  43 

if  this  selection  were  made  by  a  relatively  small  body  elected  by 
the  people.  It  was  supposed  that  the  heat  of  factional  struggle, 
which  among  the  people  at  large  sometimes  results  in  the  selec- 
tion of  unfit  men,  would  be  less  liable  to  sway  the  judgment 
of  the  intermediary  body. 

In  practice,  however,  the  system  has  not  worked  well.  Where 
political  parties  are  strongly  developed,  the  intermediaries 
have  been  pledged  delegates  of  a  party.  The  indirect  election 
strictly  carried  out  tends  to  lessen  the  voter's  interest  in  the 
result,  for  it  is  not  in  human  nature  to  be  as  interested  in  the 
selection  of  a  proxy  as  in  the  selection  of  the  representative  him- 
self. Again,  where  a  comparatively  small  body  of  men  are  con- 
cerned in  the  final  selection  of  a  representative,  the  chances  of 
corrupt  influence  are  much  greater  than  where  all  the  voters 
are  concerned.  It  is  not  easy  to  bribe  the  whole  electorate. 
On  the  whole,  then,  the  tendency  has  been  to  introduce  the  direct 
system  of  election.  The  general  argument  advanced  long  ago 
still  holds,  that  if  a  voter  is  fit  to  choose  his  proxy,  he  is  equally 
fit  to  choose- his  representative. 

Variations  in  the  constituencies  Electing  a  member  to  the 
lower  and  upper  house  form  a  common  method  of  differentiat- 
ing between  the  character  of  the  houses.  Invariably  Variations 
the  constituency  electing  a  member  of  the  upper  in  the  con- 
chamber  is  very  much  larger  than  that  electing  a  stituencies- 
member  to  the  lower  house.  The  number  of  members  in  the 
upper  chamber  is  as  a  result  uniformly  less  than  the  number  in 
the  lower,  and,  theoretically  at  least,  the  members  are  men  of 
superior  prominence  and  ability.  The  makers  of  the  constitu- 
tion of  the  United  States  hit  upon  the  happy  device  of  utilizing 
the  upper  house  to  equalize  the  rights  of  the  component  com- 
monwealths of  the  union  in  order  to  offset  the  great  differences 
in  representation  in  the  lower  house,  due  to  the  differences  of 
population  in  the  various  commonwealths.  Hence  they  pro- 
vided that  each  commonwealth  should  be  represented  by  two 
members  in  the  upper  house.  Switzerland  copied  the  United 
States'  system,  allotting  two  members  of  the  upper  house  to 


44      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

each  canton  and  one  to  each  one  half  canton.  In  France  the 
members  of  the  upper  house  are  elected  from  departements,  of 
which  there  are  eighty-six,  but  the  number  elected  from  each 
departement  varies  from  two  up  to  ten. 

Another  general  method  of  differentiating  between  the 
character  of  the  two  houses  is  to  require  different  qualifications 
Variations  ^or  membership  in  the  upper  house  from  those 
in  the  quaii-  required  for  membership  in  the  lower.  In  all 
states  it  is  required  that  members  of  each  house  shall 
be  citizens,  for  it  is  obvious  that  aliens,  owing  no  allegiance 
to  the  state,  should  have  no  voice  in  the  determination  of  the 
policy  of  government.  In  most  states  the  age  limit  for  member- 
ship in  the  legislative  houses  is  placed  above  the  legal  age  limit 
for  the  exercise  of  citizenship,  and  furthermore  the  age  limit 
for  membership  in  the  upper  house  is  higher  than  that  in  the 
lower  house.  For  example,  in  France,  Italy,  and  Belgium  the 
age  limit  for  membership  in  the  upper  house  is  forty  years,  for 
membership  in  the  lower  house  is  thirty  years ;  the  United  States, 
in  common  with  many  other  states,  sets  the  age  limit  for  the 
upper  house  at  thirty  and  for  the  lower  house  at  twenty-five. 
In  this  regard  it  may  be  stated  as  a  general  rule  that  eligibility 
to  the  upper  house  requires  an  age  greater  than  eligibility  to 
the  lower  house. 

Many  states  have  made  another  marked  difference  between 
the  two  chambers  by  making  the  tenure  of  office  longer  in  the 
Variations  upper  than  in  the  lower.  Combined  with  this 
due  to  longer  tenure  in  the  upper  house  is  a  device  whereby 

tenure^!  a  proportion  of  that  chamber  shall  be  renewed  at 
office  in  the  stated  periods.  Thus  in  the  United  States  members 
>es'  of  the  lower  chamber  are  elected  for  two-year  terms, 
but  members  of  the  upper  house  for  six-year  terms,  with 
arrangements  for  the  removal  of  one  third  of  the  latter 
chamber  every  two  years.  In  France  members  of  the  lower 
house  are  elected  for  four  years,  but  those  of  the  upper  house 
for  nine  years,  with  renewal  of  one  third  every  three  years. 
The  purpose  of  this  difference  is  to  constitute  an  upper  house  of 


THE   LEGISLATIVE  45 

a  more  stable  and  permanent  character.  A  certain  continuity 
of  policy  is  assured  which  would  be  inconceivable  if  the  composi- 
tion of  both  houses  were  subject  to  complete  change  at  similar 
intervals. 

By  the  adoption  of  one  or  more  of  the  above  practices,  then, 
states  have  tried  to  insure  that  the  upper  elective  chambers 
shall  not  be  a  mere  duplicate  of  the  lower  elective 
chambers.     In  general,  the  attempt  has  been  made  Summary  of 
to  create  an  upper  chamber  which  shall  be  composed  " 
of  persons  with  a  broader  knowledge  of  national  house  is 
needs  because  they  are  not  responsible  to  so  local  a  Sr^nt 
body  of  voters,  of  persons  with  superior  intelligence  lower, 
and  prudence  for  the  weighty  deliberations  on  state 
affairs,  inasmuch  as  age  is  universally  conceded  to  ripen  and  ma- 
ture the  powers  of  the  understanding,  and  of  persons  who  shall 
be  able  to  conceive  and  carry  through  a  continuous  policy 
because  their  tenure  of  office  is  longer. 

And  now,  briefly,  what  are  the  advantages  obtained  by  having 
two  legislative  houses  rather  than  one?  The  first  and  funda- 
mental advantage  lies  in  the  safeguard  this  second  ^dvanta  es 
(upper)  house  provides  against  hasty,  ill-considered  of  bicameral 
legislation.  The  lower  chamber,  directly  responsible  lesislature- 
to  the  people  and  dependent  at  frequent  intervals  upon  the 
people  for  office,  has  often  proved  itself  unduly  influenced  by  a 
transient  popular  clamor  for  a  measure  which  mature  de- 
liberation would  show  to  be  unwise.  Such  a  measure,  when 
passed  by  the  lower  house,  is  not  so  lightly  passed  by  the  upper. 
In  the  latter,  men  with  a  broader  conception  of  statesmanship, 
with  a  tenure  of  office  which  may  outlast  the  popular  whim, 
and  with  an  accumulated  experience  in  political  affairs,  subject 
the  proposed  measure  to  a  most  careful  scrutiny,  amend  it, 
or  perhaps  reject  it  entirely.  Furthermore,  it  is  conceivable 
that  a  single  house  endowed  with  the  enormous  power  of  the 
legislative  function  might  become  tyrannical.  Against  such  a 
possibility  the  existence  of  a  second  chamber  is  a  safeguard. 
The  upper  house  from  this  point  of  view  becomes  a  guarantee 


46      AN   INTRODUCTION  TO   THE   STUDY  OF   GOVERNMENT 

of  the  liberty  and  security  of  the  people  at  large.  A  third  ad- 
vantage of  the  existence  of  a  second  (upper)  chamber  lies  in 
the  opportunity  it  gives  for  the  fair  representation  of  elements 
in  the  state  which  hi  a  single  popularly  elected  house  might 
not  be  represented.  Thus  in  the  United  States  and  Switzer- 
land the  upper  house  is  used,  as  has  been  said,  to  give  an  equal 
representation  to  the  several  commonwealths  which  compose 
the  Union.  If  our  Congress  were  a  single  body  similar  in  com- 
position to  the  present  lower  house,  one  thickly  populated 
commonwealth  like  New  York  would  have  an  unfair  advantage 
hi  the  legislative  over  a  thinly  populated  commonwealth  like 
New  Mexico.  Some  states  of  the  world  have  made  provision 
for  the  representation  of  landed  or  moneyed  interests  in  the 
upper  house  by  restricting  the  suffrage  for  members  of  such 
house  to  persons  of  high  property  qualifications.  Such  a  de- 
vice, however,  has  tended  to  create  on  the  part  of  the  nation  at 
large  a  distrust  of  the  motives  of  a  house  so  constituted. 

The  system  of  a  bicameral  legislature  is,  of  course,  not 
wholly    without    disadvantages.    There    has    at   times    been 
strong  suspicion  that  a  lower  house  has  passed 
tagesof         legislation   with   the   deliberate   intention   of    em- 
bicameral      barrassing  the  upper  house  or  of  having  the  upper 

legislature.  •      ...        a      i_ 

house  reject  it.  Such  cases  may  occur  where  the 
majority  in  the  two  houses  is  of  different  political  complexion, 
or  where  the  members  of  the  lower  house  yield  to  what  they 
realize  is  a  passing  popular  clamor  in  order  that  they  personally 
may  be  reflected  to  their  seats.  Furthermore,  the  attainment 
of  legislation  is  relatively  slow.  The  debates  are  many  times 
reproduced  in  the  upper  house  from  the  lower  and  no  new 
arguments  advanced.  Again,  the  upper  houses  have  proved  so 
conservative  that  in  many  cases  they  have  lost  the  confidence 
of  the  people  at  large. 


THE   LEGISLATIVE  47 

II.  POWERS  OF  THE  LEGISLATIVE  CHAMBERS 

In  general,  the  two  chambers  are  endowed  under  the  con- 
stitution of  the  several   states  with   equal  powers.     Either 
chamber     may     introduce     legislative     measures, 
either  chamber  may  amend  or  reject  such  legisla-  powers  of 
tion  when  introduced,   and  the  consent  of  both 
chambers  is  necessary  for  the  passage  of  any  bill 
whatever. 

One  very  important  exception  to  the  above  general  rule  is 
to  be  noted.  The  constitutions  of  the  various  states  commonly 
provide  that,  in  the  case  of  any  appropriation  bill,  —  Exception : 
"  money  bill, "  as  it  is  commonly  called,  a  bill  having  m°ney  b^s. 
to  do  with  the  raising  or  appropriation  of  money,  —  the  powers 
of  the  upper  chamber  shall  be  more  limited  than  those  of  the 
lower.  Usually  provision  is  made  that  money  bills  may  be 
introduced  only  by  the  lower  house,  and  that  the  action  of  the 
upper  house  shall  be  more  or  less  perfunctory.  In  England, 
until  very  recently,  it  was  commonly  supposed  that  the  upper 
house  had  no  possible  alternative  to  passing  a  money  bill,  but 
in  1910  the  House  of  Lords  precipitated  a  memorable  conflict  by 
rejecting  the  budget  submitted  to  it  from  the  lower  house,  as  a 
result  of  which  conflict  the  House  of  Lords  was  definitely  shorn 
of  its  power  of  any  finality  of  action  on  any  bill.  In  some 
states,  as  France,  Holland,  and  Prussia,  although  the  upper 
chamber  may  not  originate  or  amend  money  bills,  it  has  the 
right  to  reject  them,  thus  throwing  the  bills  back  into  the  lower 
house  for  further  discussion.  In  the  United  States,  although 
the  upper  house  may  not  originate  money  bills,  it  has  the  right 
to  amend  such  bills;  and  it  uses  this  right  to  such  an  extent 
that  its  powers  hi  this  regard  are  practically  equal  to  those  of 
the  lower  house.  Two  states  allow  equal  rights  in  money 
bills  to  the  two  chambers ;  namely,  Germany  and  Switzerland. 

Although  the  imitation  of  the  English  system  was  responsible 
in  the  first  place  for  the  greater  power  of  the  lower  house  in 
money  legislation,  the  reasonableness  of  the  arrangement  is 


48      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

responsible  for  its  retention  in  modern  times.  The  house 
which  is  most  directly  elected  by  and  subject  to  the  people 
should  control  the  raising  and  spending  of  that  money  which  is 
only  procured  by  the  taxation  of  the  people.  In  the  economic 
life  of  a  state,  the  question  of  national  finance  is  most  important ; 
it  is  reasonable  that  this  question,  which  is  of  personal  interest 
to  every  citizen,  should  be  under  the  control  of  his  direct  repre- 
sentative in  the  national  legislature. 

The  power  over  money  bills  and  the  direct  popular  election 
of  members  has  resulted  in  giving  the  lower  house  of  the  legis- 
lative body  a  predominating  influence  in  government, 
of  Whenever  there  is  a  conflict  between  the  two  cham- 
the  two  bers,  public  sympathy  is  always  with  that  body 
powers  m  which  it  has  directly  elected  and  which  it  has  power 
at  relatively  short  intervals  to  influence  and  change 
Thus  in  England,  France,  Italy,  and  a  number  of  less  important 
states  the  upper  chamber  is  dominated  by  the  lower.  Condi- 
tions in  the  United  States  and  Germany,  where  the  upper  house 
represents  the  constituent  commonwealths  of  the  union,  and 
where  almost  equal  control  over  the  finances  is  vested  in  each 
of  the  two  houses,  are  different  and  have  resulted  in  an  upper 
chamber  of  exceptional  power. 


III.  RULES  OF  PROCEDURE  IN  LEGISLATIVE  BUSINESS 

In  a  national  legislative  body  where  such  a  mass  of  business 
is  continually  pressing  for  attention,  it  has  been  necessary  to 
Need  for  devise  certain  methods  of  procedure  to  prevent 
rules  of  confusion  and  interminable  delay.  The  legislatures 
?n°iegishi-  in  a11  the  leading  states  of  the  world  have  bodies  of 
tivebusi-  rules  in  accordance  with  which  business  must  be 
transacted.  These  rules  are,  of  course,  made  by 
the  legislative  bodies  themselves  and  may  upon  occasion  be 
amended  or  entirely  disregarded.  It  is  impossible  to  make 
these  rules  few  in  number  and  simple  in  character ;  indeed,  Mr. 
Bryce  is  authority  for  the  statement  that  in  our  own  legislature 


THE   LEGISLATIVE  49 

experience  through  one  entire  session  of  Congress  is  necessary 
before  a  new  member  of  the  House  of  Representatives  can 
learn  the  rules  of  procedure. 

There  are  certain  rules  which  are  common  to  the  legisla- 
tive bodies  in  many  of  the  leading  states  which  will  General 
illustrate  in  a  general  way  the  working  of  the  legis-  rules  of 
lative  body.  procedure- 

(1)  It  is  a  general  rule  that  a  bill  be  subjected  to  three 
"readings"  at  intervals  of  time  before  its  final  passage.     The 
object  of  this  primarily  is  to  insure  the  proper  consideration  of 
each  bill  and  thus  to  prevent  hasty  legislation.     In  some  cases 
this  rule  has  degenerated  into  a  mere  formality  whereby  only 
the  title  and  number  of  the  bill  are  mentioned  for  the  first  two 
times,  no  serious  consideration  being  given  to  the  substance  of 
the  bill  by  the  whole  house  until  its  final  reading.     In  other 
cases,  however,  notably  in  the  English  Parliament,  the  bill  is 
voted  upon  at  each  reading,  and  its  passage  through  each  of  the 
three  stages  provides  opportunity  for  debate  and  serious  con- 
sideration. 

(2)  Another  general  characteristic  of  procedure  in  legislative 
bodies  is  the  reference  of  bills  to  committees.     It  has  been 
found  impossible  to  consider  in  the  whole  house  each  of  the 
thousands  of  bills  presented  in  a  session,  so  that  to  expedite 
business  numerous  standing  committees  are  created  to  which 
bills  may  be  referred.     In  the  Senate  of  the  United  States,  for 
example,  there  are  over  fifty  such  committees.    When  a  bill  is 
introduced  and  read  (usually  by  title  and  number  only),  it  is 
referred  at  once  to  the  appropriate  committee.     The  bill  may 
never  be  referred  out  of  the  committee,  —  most  bills  never  are,  — 
and  in  this  case  it  dies,  but  within  the  committee  it  receives, 
theoretically  at  least,  the   consideration   it  deserves.      Each 
committee  is  thus  given  extensive  power,  for  upon  its  report  hi 
most  instances  the  house  acts.     The  committee  may  destroy 
a  bill  by  an  adverse  report,  may  introduce  a  substitute  of  a 
very  different  character,  or  may  (as  indicated  above)  allow  the 
bill  to  die  by  not  referring  it  out  to  the  house. 


50        AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

(3)  A  third  rule  commonly  found  in  legislative  chambers  is 
one  for  restricting  debate.  Experience  has  shown  the  advisa- 
bility of  providing  the  majority  of  a  house  with  the  means  of 
ending  discussion  and  demanding  a  vote.  This  is  done  in  our 
House  of  Representatives  by  moving  "the  previous  question," 
which  motion,  if  carried  by  a  majority  of  the  quorum  present, 
operates  to  force  a  vote  on  the  bill  under  discussion.  In  the 
House  of  Commons  any  member  may  make  a  motion  to  close 
the  debate,  but  it  is  within  the  discretion  of  the  speaker  whether 
the  motion  shall  be  put  to  vote  or  not.  The  fault  of  the  system 
by  which  debate  may  be  closed  is  evident,  namely,  that  it 
provides  the  majority  with  a  weapon  by  which  legitimate  dis- 
cussion may  be  throttled ;  but  the  evils  of  the  opposite  system, 
whereby  the  opponents  of  a  legitimate  measure  could  by  endless 
speeches  hold  up  all  the  work  of  the  legislature,  have  led  to  its 
adoption.  The  United  States  Senate  is  an  exception  to  this 
rule.  The  senators  hold  fast  to  the  principle  of  unlimited  dis- 
cussion, but  the  abuse  of  the  privilege  in  recent  Congresses  has 
led  to  an  insistent  demand  that  some  means  be  devised  for 
expediting  business. 

IV.  THE  INDIVIDUAL  LEGISLATOR 

The  problem  confronting  a  member  of  the  legislative  body, 
whether  in  the  lower  or  the  upper  chamber,  is  very  complex. 

His  is  a  divided  responsibility,  a  responsibility  on 
tion  crfthe  ^e  one  side  to  the  constituency  which  he  represents, 
member  of  a  responsibility  on  the  other  side  to  the  state  for 
fjuHegisia-  ^ich  he  js  engaged  in  framing  laws.  The  clash 

of  the  interests  of  the  two  is  often  enough  very  real. 
Theoretically,  it  may  be  argued  that  these  two  interests  are 
the  same,  that  the  welfare  of  the  whole  state  is  conditioned  upon 
the  welfare  of  each  of  its  constituent  parts ;  but  practically,  as 
separate  measures  are  introduced  and  discussed,  each  individual 
member  is  forced  to  reconcile  as  best  he  can  the  interests  of  his 
particular  locality  with  the  interest  of  the  whole  state,  and 
vote  accordingly. 


THE    LEGISLATIVE  51 

The  difficulty  of  finding  men  who  truly  represent  their 
constituencies  has  led  to  a  discussion  of  the  advisability  of 
having  instructed  representatives,  i.e.  representa- 
tives instructed  upon  their  election  how  to  vote  upon 
certain  issues  which  it  is  known  are  to  be  introduced  stmcted 
in  the  legislature.  The  argument  for  an  instructed  "^ senta" 
representative  is  that  his  duty  is  to  serve  merely 
as  the  mouthpiece  of  those  who  elected  him,  to  record  the  col- 
lective will  of  his  constituents.  Without  denying  the  respon- 
sibility of  the  representative  to  his  constituents,  a  different 
view  of  the  position  of  the  representative  should  be  emphasized. 
A  representative  is  a  person  elected  by  his  constituents  to  do 
what  they  would  do  were  it  possible  for  all  of  them  to  act  in 
his  place,  to  weigh  the  pros  and  cons  of  debate,  to  consider  the 
bearing  of  each  measure,  not  alone  on  his  own  small  district, 
but  on  the  whole  state.  A  representative  is  elected  to  think, 
decide,  and  act,  for  and  in  the  place  of  the  people  of  his  con- 
stituency. To  bind  him  by  rigid  instructions  before  he  takes 
his  place  in  the  legislature,  before  he  hears  the  arguments  on 
the  one  side  and  the  other,  free  from  the  circumscribed  preju- 
dices of  his  own  district,  before  he  estimates  the  good  or  evil 
possibilities  for  the  country  at  large,  is  to  deprive  him  of  his 
capacity  as  representative  and  to  make  him  merely  a  delegate. 
From  this  point  of  view  England,  France,  Germany,  Austria, 
and  Switzerland,  all  favor  and  provide  for  uninstructed  repre- 
sentatives. The  United  States,  though  without  definite  pro- 
vision, has  tended  toward  the  same  ideal. 


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CHAPTER  V 

THE  EXECUTIVE 

Strict  inter-  THE  executive  is  primarily  that  organ  of  govern- 

pretation:  ment  which  is  responsible  for  putting  the  laws  into 

adnSristra-S  en?ect  &&&  securing  their  due  operation  throughout 

tive  agent  of  the  state.    Thus,  primarily,  the  executive  is  the 

legislative,  administrative  agent  of  the  legislative. 

I.  EXECUTIVE  AS  AGENT  OF  THE  LEGISLATIVE 

The  duties  and  functions  of  the  executive  when  acting  in  his 
primary  capacity  as  the  administrative  agent  of  the  legislative 
Duties  and  are  varie(*  an<^  important.  The  executive  is  re- 
functions  of  sponsible  for  the  collection  of  all  public  moneys, 
as^admlnis-  wne^ner  from  internal  taxation  or  from  tariff  on 
trative  agent  imports,  and  for  the  expenditure  of  such  moneys ; 
onegisia-  for  the  reiatjons  of  the  state  with  all  other  states 

in  the  family  of  nations ;  for  the  maintenance  of 
the  national  defense  by  the  use  of  the  army  and  navy  if 
needful ;  for  the  preservation  of  civil  rights  to  individual  citizens 
by  the  use  of  the  police  power  if  necessary;  for  the  utiliza- 
tion of  the  natural  resources  of  the  country  in  a  manner  which 
shall  most  benefit  the  whole  body  of  the  citizens  of  the  state ; 
for  the  efficient  supervision  of  all  agencies  affecting  the  general 
interests  of  all  citizens,  as  agencies  of  transportation,  commu- 
nication, and  the  like ;  for  the  insurance  of  equitable  relations 
between  the  great  bodies  of  capital  and  labor,  that  the  general 
prosperity  of  business  may  be  forwarded  at  the  same  time  that 
the  rights  of  individuals  are  safeguarded.  Such  are  among 
the  most  important  functions  of  the  executive  organ  acting  as 
the  administrative  agent  of  the  legislative  in  a  modern  demo- 
cratic state. 

62 


THE  EXECUTIVE  63 

The  personnel  of  the  executive  department  charged  with 
administering  the  laws  of  the  country  is  large  in  number.    All 
members  of  the  army  and  navy,  all  the  officials  of 
the  various   departments   of   state,    as   the   State  Personnel  of 
Department,   the   Treasury  Department,   the  De-  *ecess£yto 
partment  of  the  Interior,  etc.,  all  diplomatic  and  act  as  ad- 
consular  representatives,  all  revenue  collectors  of  JJJ^f  *** 
whatever  kind,  all  of  the  thousands  of  assistants,  legislative, 
clerks,  and  the  like  necessary  for  the  subordinate 
duties  in  the  various  departments,  —  all  these  are  a  part  of  the 
executive  in  that  they  are  concerned,  however  humbly,  with 
the  administration  of  the  laws  of  the  state.     In  its  personnel 
the  executive  far  outnumbers  the  other  branches  of  govern- 
ment. 

For  the  headship  of  this  great  department  experience  has 
proved  that  it  is  wise  to  have  a  single  person.  For  legislative 

deliberation  many  heads  are  better  than  one,  but  for 

Unity  ad- 
executive  action,  the  requirements  of  unity,  resolu-  visabie  for 

tion,  and  at  times  quickness  of  decision  are  best  executive 
served  by  one  head.    Thus  we   find  a   king,  an 
emperor,  a  czar,  a  sultan,  a  president,  or  the  like  at  the  head 
of  each  of  the  governments  in  the  civilized  world  to-day. 
Switzerland  presents  the  single  notable  exception  to  this  general 
rule  in  that  it  has  an  executive  head  composed  of  a  council  of 
seven  persons,  each  sharing  the  actual  executive  power  equally 
with  his  colleagues. 

A  distinction  should  be  observed  between  those  states  in 
which  the  executive  head  is  actually  in  control  of  his  functions, 
and  those  in  which  the  executive  head  is  only  nomi- 

JN  omiflftl 

nally  in  control,  his  functions  being  actually  deter-  and  actual 
mined  by  others.     In  the  United  States  the  execu- 
tive  head,  the  President,  is  an  actual  executive.     He 
may  receive  advice  and  may  consult  with  many  persons  both 
in  and  out  of  official  life,  but  the  final  decision  and  all  the  re- 
sponsibility rest  with  him.     In  England,  France,  and  Italy, 
on  the  contrary,  a  body  of  ministers  determines  the  policy  and 


64   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

dictates  the  action  of  the  executive  head.  The  executive  head 
in  these  states  is  still  a  single  person,  and  all  executive  action 
must  be  taken  nominally  by  him,  but  in  actual  fact  decision 
and  responsibility  rest  upon  the  body  of  ministers. 

To  cope  with  the  vast  amount  of  business  included  in  the 

administration  of  the  laws,  a  correspondingly  vast  number  of 

officials  is  necessary.    The  selection  and  supervision 

ment'of'as-    °^  tnese  officials  in  a  large  measure  fall  upon  the 

sistants  to      executive  head.    Thus  he  appoints  diplomatic  rep- 

head1^6       resentatives,  postmasters,  officers  of  the  army  and 

navy  (although  these  appointments  are  now  largely 

a  matter  of  regular  promotion),  revenue  agents,  and  the  like. 

In  various  countries  the  abuse  of  the  appointing  power  in  its 
exercise  to  repay  political  debts,  thus  ousting  worthy  employees 
of  the  state  and  replacing  them  with  inexperienced  persons, 
has  led  to  the  establishment  of  a  civil  service  system,  whereby  a 
large  number  of  positions  in  the  service  of  the  state  are  open  to 
merit  as  shown  by  competitive  examinations.  Thus,  in  the 
United  States,  certain  grades  of  postmasters  and  a  large  pro- 
portion of  the  clerks  engaged  in  executive  departments  hold 
their  positions  secure  from  political  changes.  The  number  and 
importance  of  the  offices  remaining  under  the  direct  appointing 
power  of  the  President  in  this  country,  however,  still  make  this 
power  one  of  the  most  important  he  wields  for  the  good  or  evil 
of  the  administration. 

It  is  not  to  be  understood  that  the  responsibility  of  the  execu- 
tive head  ends  with  the  appointment  of  a  subordinate  in  the 
Responsible  department.  If  the  governor-general  of  India  is  at 
ity  of  execu-  fault  in  any  matter,  the  responsibility  falls  upon  the 
fo^the'work  English  ministry  to  whom  he  is  subordinate;  if 
done  by  his  the  French  representative  in  Tangiers  makes  trouble 
appointees.  £Qr  j^g  natjon^  ^he  attack  in  France  is  made  upon  the 
ministry  conducting  the  government ;  if  our  foreign  minister 
to  Mexico  involves  us  in  needless  difficulties  with  that  country, 
our  criticism  is  directed  against  our  President.  The  share  of 
the  executive  head  is  thus  a  very  real  one. 


THE   EXECUTIVE  65 

II.   EXECUTIVE  FUNCTIONS  DISTINCT  FROM  THOSE  AS  AGENT 
FOB  THE  LEGISLATIVE 

The    chief   executive    has    functions  of  the    greatest  im- 
portance   entirely   aside  from   those   which    he   performs    in 
his  primary  capacity  of  administrative  agent  for  Executive 
the    executive.     In    actual    practice,    the    duties  head  has 
of  the   executive   as   administrative   agent   of  the  ^01 
legislative,  important  as  they  are,  are  largely  per-  those  of 
formed  in  routine  manner  by  the  army  of  assistants  J^"^^" 
in  the  executive  branch  of  government,   but  the  foriegisia- 
powers  which  we  shall  outline  below  are  exercised  fave' 
by  the  chief  executive  himself. 

In  his  relations  with  the  legislative    the    chief    executive 
commonly  has  means  of  suggesting,  initiating,  or 
influencing  legislation  on  matters  of  general  concern,  recommend- 
The  means  by  which  this  end  is  accomplished  differ  ^  legisia- 
radically  in  different  states. 

Under  the  English  system  the  ministry,  which  is  the  actual 
executive  head,  is  itself  a  part  of  the  dominant  party  in  the 
House  of  Commons,  itself  frames  legislative  measures,  superin- 
tends their  enactment  by  the  lower  chamber,  and  influences  in 
one  way  or  another  the  considerations  of  the  upper  chamber. 

In  Germany,  where  each  house  of  the  legislative  body  has 
equal  rights  in  the  matter  of  initiating  legislation,  the  execu- 
tive head,  the  Emperor  (who  is  likewise  king  of  Prussia),  can 
initiate  measures  in  the  upper  house  (Bundesrath)  through  those 
Prussian  members  who  are  appointed  by  and  are  directly  respon- 
sible to  him. 

In  France  the  executive  head  (the  President)  is  invested  with 
the  power  to  initiate  legislation  directly,  but  comparatively 
seldom  avails  himself  of  the  privilege.  There  the  real  power 
is  in  the  hands  of  the  ministry,  and  it  is  the  part  of  this  ministry 
to  prepare,  introduce,  and  defend  legislative  measures. 

In  the  United  States  neither  the  executive  head  (the  Presi- 
dent) nor  any  member  of  his  cabinet  is  a  member  of  the  legisla- 


66      AN   INTRODUCTION   TO  THE   STUDY  OF  GOVERNMENT 

tive,  nor  has  the  executive  head  any  direct  representative  in 
the  legislative  body.  He  may,  however,  have  an  important 
part  in  initiating  and  influencing  legislation  in  various  ways. 
For  example,  under  the  constitution  he  is  required  to  give  from 
time  to  time  "to  the  Congress  information  of  the  state  of  the 
Union,  and  recommend  to  their  consideration  such  measures 
as  he  shall  judge  necessary  and  expedient."  He  fulfills  this 
requirement  by  regular  messages  delivered  to  Congress  at  the 
beginning  of  each  of  its  regular  sessions  and  by  such  special 
messages  as  he  may  deem  needful  throughout  the  sessions. 
The  amount  of  influence  which  these  messages  have  upon 
the  legislative  body  may  be  great  or  little,  depending  upon  the 
political  relations  between  the  executive  and  the  legislature, 
the  wisdom  of  the  suggestions,  and  the  personal  aggressiveness 
with  which  the  suggestions  are  followed  up.  Furthermore, 
although  the  President  has  no  accredited  representatives  in 
the  Congress,  he  always  has  friends  of  his  own  party  who  will 
introduce  measures  in  just  the  form  he  desires. 

In  most  states  a  very  important  legislative  power  in  the 
hands  of  the  executive  head  consists  in  his   constitutional 
to  veto  anv  ^esis^a^ve  enactment.    Such  a 


Veo       er 

veto  is  commonly  under  the  constitution  not  final; 

in  other  words,  provision  is  made  for  the  passage  of  legislation 
over  the  veto  of  the  executive  head,  generally  by  some  unusual 
majority  in  the  legislative  chambers.  In  the  United  States, 
for  example,  the  President  must  give  his  reasons  for  his  veto, 
and  the  Congress  must  reconsider  the  measure  in  the  light  of 
the  presidential  veto,  a  two-thirds  majority  in  each  house 
serving  to  pass  the  measure  in  spite  of  the  veto.  In  Germany 
the  executive  head  of  the  Empire  has  no  veto  power,  but  in 
actual  fact,  through  his  position  as  king  of  Prussia,  he  has  in  his 
representatives  in  the  Bundesrath  a  very  effective  veto  on 
the  most  important  classes  of  legislation,  for  the  constitution 
provides  that  the  negative  vote  of  the  Prussian  contingent  in 
the  Bundesrath  defeats  (1)  any  amendment  to  the  constitu- 
tion, or  (2)  any  change  in  the  laws  concerning  taxes,  or  army,  or 


THE  EXECUTIVE  67 

navy.  The  executive  head  of  France  has  no  power  of  veto 
upon  the  laws,  but  may  require  the  reconsideration  of  proposed 
measures.  In  England  the  veto  of  the  executive  head  is  ab- 
solutely final,  thus  forming  an  exception  to  the  general  rule, 
but  as  a  matter  of  fact  the  nominal  executive  head  (king) 
never  uses  the  veto,  and  the  actual  executive  head  (ministry)  is 
the  proposer  and  sponsor  of  all  measures  passed  by  the  legisla- 
tive body.  The  veto,  therefore,  has  practically  ceased  to  exist 
in  English  government. 

Another  function  of  the  executive  head  which  is  legislative 
in  character  is  the  power  to  make  and  put  into  effect  such 
ordinances  as  are  necessary  for  the  execution  of 
legislative  measures.  Under  this  power  the  execu- 
tive  head  actually  drafts  a  very  considerable  effecting  the 
amount  of  legislation.  In  the  United  States  com-  °£  iaws°n 
monly  the  legislative  measures  are  framed  so  as  to 
cover  all  possible  questions  and  to  provide  the  means  for  their 
own  proper  execution ;  and  yet  all  the  regulations  for  the  army 
and  navy,  all  the  rules  governing  the  postal  service,  customs 
service,  internal  revenue  service,  civil  service,  consular  service, 
are  ordinances  drawn  up  and  promulgated  by  the  executive. 
In  foreign  states,  where  legislative  acts  usually  embody  only 
the  essentials,  a  much  greater  burden  of  ordinance  preparation 
for  the  proper  execution  of  the  enactments  devolves  upon  the 
executive,  and  this  power  is  correspondingly  more  important. 

In  most  states  the  executive  head  is  invested  under  the  con- 
stitution with  certain  rights  relative  to  convening,  adjourning, 
or  dissolving  the  legislative  body.     In  the  United  Power  over 
States,   and   in   many  of   the   republics   patterned  meeting  of 
after  it,  the  regular  sessions  of  the  legislative  body  legislative 
are  provided  for  by  the  constitution  or  by  statute, 
and  the  power  of  the  executive  head  is  confined  to  convening 
the  legislative  in  extraordinary  session  for  special  business. 
In  other  states,  especially  those  in  which  a  monarchical  form  has 
been  retained,  the  executive  head  issues  the  summons  to  con- 
vene the  legislative  body  and  formally  opens  each  session. 


68      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

Thus,  in  England,  Parliament  is  always  summoned  by  the  king 
(at  the  direction  of  his  ministry)  and  opened  with  a  formal 
address  from  the  throne  (prepared  or  carefully  revised  by  the 
ministry).  The  Emperor  of  Austria  is  invested  with  the  power 
to  convene,  adjourn,  or  dissolve  the  legislative  body.  The 
Emperor  of  Germany  is  invested  with  the  power  to  summon 
and  adjourn  the  legislative  chambers,  and,  with  the  consent  of 
the  Bundesrath,  to  dissolve  them  if  occasion  warrants.  In 
these  states,  however,  the  exercise  of  the  above  power  by  the 
executive  head  is  carefully  guarded  by  various  provisions  to 
prevent  an  arbitrary  use  of  it  to  defeat  necessary  legislative 
action.  Thus,  in  Germany  and  France,  the  executive  head  may 
dissolve  the  lower  house  only  with  the  consent  of  the  upper 
house,  and  the  executive  head  is  required  to  convene  a  new 
legislative  body  within  a  specified  time.  In  other  states  the 
legislative  head,  either  as  a  result  of  statute  or  of  necessity 
(as  for  the  passing  of  a  budget  to  carry  on  the  government), 
must  convene  the  legislature  not  less  than  once  a  year. 

In  the  relations  between  states,  i.e.  in  international  relations, 
the  executive  head  becomes  the  representative  of  the  whole 

state.  Through  this  executive  head  all  communica- 
interna-  tions  to  and  from  other  states  are  transmitted.  The 
tional  rela-  powers  of  the  chief  executive  in  the  matter  of  treaties 

and  commercial  agreements  with  foreign  states  are 
very  great.  Usually  the  consent  of  one  or  both  houses  of  the 
legislative  body  is  necessary  to  ratify  a  treaty  negotiated  by 
the  chief  executive,  but  in  a  few  states,  as  in  England,  the  legis- 
lative body  has  no  share  except  to  pass  such  measures  as  will 
make  the  provisions  of  the  treaty  effective.  In  the  United 
States  the  Senate  has  claimed  and  exercised  the  right  to  amend 
treaties  negotiated  by  the  executive  head  as  well  as  to  ratify 
or  reject  them,  and  the  House  of  Representatives  reasonably 
shares  in  the  ratification,  rejection,  or  amendment  of  certain 
classes  of  commercial  agreements,  as  reciprocity  bills. 

The  chief  executive  in  all  states  is  in  supreme  command  of 
the  military  forces  of  the  state.     His  right  to  distribute  the 


THE   EXECUTIVE  69 

forces  both  of  the  army  and  of  the  navy  in  such  manner  as 
seems  most  suitable,  to  choose  officers,  and,  in  case  of  war,  to 
plan  and  carry  through  such  operations  as  will  bring 
ultimate  success  to  the  state,  is  unquestioned.  The 
unanimous  agreement  of  the  great  states  of  the  world  military 
in  concentrating  the  military  forces  of  the  state  in 
the  hands  of  the  chief  executive  alone  is  due  to  the 
necessity  of  having  perfect  unity  in  the  operations  of  such  forces. 

Together  with  the  supreme  command  of  its  military  forces, 
the  executive  head  is  in  some  states,  as  England,  invested  with 
the  power  to  declare  war.     In  most  states,  however, 
the  consent  of  one  or  both  houses  of  the  legislature 
is   necessary  to    a    declaration   of   war.     Thus,   in  with  the 
Germany  the  Emperor  has  to  have  the  consent  of  of5^***00 
the  Bundesrath,  and  in  France  the  President  must 
have  the  consent  of  both  the  Senate  and  the  Chamber  of  Dep- 
uties.    In  the  United  States  the  right  to  declare  war  is  vested 
in  the  Congress. 

Lastly,  in  most  states  the  executive  head  is  invested  under 
the  constitution  with  the  power  to  pardon  any  one 
convicted  by  the  courts  of  the  state.  Even  under  a 
most  efficient  system  of  administering  justice  it 
is  impossible  to  be  sure  that  no  mistakes  are  committed ;  the 
pardoning  power  exists  primarily  for  the  purpose  of  correcting 
such  mistakes  as  may  be  discovered. 

Under  some  constitutions  cases  of  impeachment  or  convictions 
for  treason  are  specifically  excepted  from  the  operation  of  the 
executive  pardon.  The  purpose  of  these  exceptions  is  to  pre- 
vent the  possibility  of  an  executive  conniving  with  officials  in 
high  crimes  against  the  state  and  using  the  pardoning  power  to 
shield  himself  and  his  accomplices  from  the  results  of  convic- 
tion. 

From  the  preceding  paragraphs  the  great  importance  of  the 
chief  executive  is  manifest.  He  is  the  chief  of  that  department 
which  is  the  agent  of  the  legislative  body  in  the  vast  and  com- 
plicated business  of  administering  the  laws  of  the  state ;  he  has 


70      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

an  important  part  in  the  actual  framing  of  legislation,  either 
by  direct  or  indirect  initiative  of  measures  in  the  legislative 

body,  or  by  his  influence  upon  the  legislative  body, 
function?  °f  ky  hig  veto,  or  by  the  ordinances  made  to  carry  into 
and  powers  effect  measures  passed  by  the  legislative  body ;  he 
£eaedxecutive  has  powers  relative  to  the  convening,  adjourning,  or 

dissolution  of  the  legislative  body ;  he  has  extensive 
power  in  international  relations,  as  in  the  framing  of  treaties  or 
commercial  agreements ;  he  has  supreme  command  and  dis- 
position of  all  the  military  forces  of  the  state ;  he  has  the  right 
to  extend  pardon  to  any  person  convicted  in  the  courts  of  the 
state.  The  great  powers  of  the  executive  head  make  corre- 
spondingly important  for  us  a  knowledge  of  the  methods  of 
selection  of  such  head,  his  tenure  of  office,  and  the  methods  of 
procedure  in  undertaking  the  complicated  duties  of  the  posi- 
tion. 

III.   SELECTION  OF  CHIEF  EXECUTIVE 

For  the  selection  of  the  nominal  head  of  the  executive 
Methods  of  department  two  methods  are  used  in  modern 
executive  states :  the  hereditary  method  and  the  elective 
head.  method. 

The  hereditary  method  is  a  relic  of  the  monarchical  govern- 
ment of  previous  ages.  By  this  method  the  person  of  the  nominal 
Hereditary  ruler  is  determined  by  blood  relationship,  usually 
method.  by  direct  descent  from  a  previous  monarch,  and 
the  selection  in  many  states  is  confined  to  males.  In  all  demo- 
cratic states  to-day  the  nominal  ruler  thus  selected  has  his 
powers  as  executive  head  carefully  hedged  about  by  constitu- 
tional restrictions.  In  England,  for  example,  the  hereditary 
monarch  has  long  since  ceased  to  be  more  than  a  nominal  ex- 
ecutive head,  all  the  executive  power  being  in  the  hands  of 
his  ministry ;  in  Germany  the  Emperor,  without  the  consent 
of  the  upper  house  of  the  legislative  body,  can  accomplish  very 
little,  although  his  position,  by  reason  of  his  power  as  king  of 
Prussia  and  his  right  to  appoint  a  chancellor  (prime  minister) 


THE  EXECUTIVE  71 

of  the  Empire  responsible  only  to  himself,  is  one  of  greater  power 
than  that  of  the  English  monarch;  in  Italy  the  king  is  now 
completely  under  the  control  of  his  ministry,  though  it  is  said 
that  the  monarch's  personal  influence  is  very  great. 

The  methods  of  selection  by  election  vary,  as  did  the  selection 
by  election  of  members  of  the  upper  house  of  the  legislative  body, 
in  that  in  some  states  the  executive  head  is  elected  Elective 
directly  by  the  people  and  in  other  states  is  elected  JJi™£elec- 
indirectly  by  an  intermediate  body.  The  method  of  tion. 
direct  popular  election  is  not  used  in  any  of  the  great  modern 
states  which  have  been  most  under  discussion ;  it  is  confined  at 
present  to  a  few  important  South  American  republics,  as  Brazil 
and  Peru.  As  an  actual  fact,  however,  the  method  of  indirect 
elections  in  the  United  States  has,  under  party  influence, 
become  a  species  of  direct  election,  for  the  members  of  the  in- 
termediate body  charged  with  selection  are  elected  by  parties 
and  are  under  party  pledge  to  cast  their  votes  for  a  man  pre- 
viously named.  So  obvious  is  the  uselessness  of  this  inter- 
mediary body  in  the  United  States  under  present  conditions 
that  in  1913  the  executive  head  proposed  that  measures  be 
taken  to  provide  for  a  system  of  direct  election. 

There  is  much  to  be  said  in  favor  of  the  direct  election  of 
the  chief  executive,  the  chief  arguments  being  that  this  method 
is  more  nearly  the  ideal  of  modern  democracy,  and  that  an 
executive  thus  chosen  is  more  likely  to  retain  the  confidence 
of  the  people  at  large.  Those  opposed  to  the  selection  of  the 
executive  head  by  direct  election  point  to  the  great  disturbance 
to  the  state  which  such  direct  election  involves,  and  emphasize 
the  proneness  of  the  mass  of  the  people  to  be  swayed  by  dema- 
gogues. 

There  are  two  methods  by  which  the  executive  head  is 
chosen  by  indirect  election :  first,  his  selection  by         . 
an  intermediate  body  elected  for  the  special   pur-  method:  in- 
pose  by  the  people  of  the  state;  and  second,  his  direct elec- 
selection  by  the  legislative  body. 

The  former  of  these  methods  is  the  system  used  in  the  United 


72      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

States  and  in  certain  American  republics  whose  governments 
are  modeled  upon  that  of  the  United  States,  as  Chile  and  the 
Argentine  Republic.  The  advantages  claimed  for  this  system 
are  that  the  final  choice  for  so  important  an  official  in  the 
government  is  restricted  to  a  small  body  of  select  men,  and 
that  the  excitement  and  turmoil  attending  a  popular  election 
are  avoided ;  but  it  is  a  fact  that,  where  the  system  has  not, 
under  party  influences,  become  practically  direct  (as  in  the 
United  States),  the  opportunities  for  intrigue  and  corruption 
in  the  small  body  are  much  increased. 

The  selection  of  the  executive  head  by  the  legislative  body 
is  the  method  of  indirect  election  used  in  France.  In  that 
state  the  two  chambers  of  the  legislature  meet  in  joint  session 
(called  the  national  assembly)  at  Versailles  and  ballot  for  the 
President  of  the  Republic.  The  advantages  claimed  by  the 
defenders  of  this  method  of  selection  are :  (1)  that  in  the  legis- 
lative body  are  those  men  acquainted  with  the  nature  of  the 
state  problems  and  best  fitted  to  choose  an  executive  head  to 
cope  with  these,  and  (2)  that  the  choice  of  the  executive  head 
by  the  legislative  body  insures  a  cordial  cooperation  between 
the  executive  and  legislative  branches  of  government  in  the 
many  and  great  tasks  they  jointly  perform.  Some  very  serious 
objections  offset  these,  however.  The  possibility  of  intrigue 
where  the  head  of  one  powerful  branch  of  government  is  de- 
pendent upon  the  will  of  another  branch  of  government  is 
great;  an  ambitious  and  unscrupulous  candidate  might  yield 
to  the  temptation  to  gain  the  office  or  to  retain  the  office  by 
promises  of  political  rewards  or  influence  to  members  of  the 
legislative  body.  Furthermore,  to  put  the  burden  of  selecting 
the  executive  head  upon  the  legislative  body  is  to  impose  upon 
that  body  a  task  which  is  not  primarily  its  function  and  which 
is  certain  to  interfere,  for  a  time  at  least,  with  legislative  pro- 
cedure. During  the  period  when  such  a  selection  is  in  progress, 
ordinary  necessary  legislation  is  certain  to  be  blocked  or  strongly 
affected;  in  an  especially  exciting  contest  for  the  executive 
officer,  the  time  lost  may  be  very  considerable. 


THE  EXECUTIVE  73 

In  the  case  of  elected  executive  heads,  whether  elected 
directly  or  indirectly,  the  tenure  of  office  is  commonly  short, 
the  idea  being  to  keep  the  control  of  this  office  Tenure  of 
in  the  hands  of  the  people  or  their  representatives.  ^tee£fex_ 
In  the  United  States  the  President  is  elected  for  ecutive 
four  years  and  is  eligible  for  reelection;  in  France  heads- 
the  term  is  seven  years  and  the  President  is  eligible  for  re- 
election; the  President  of  Chile  is  chosen  for  five  years  and 
is  not  eligible  for  reelection.  In  general,  the  constitutions  of 
the  various  states  have  been  drawn  with  the  purpose  of  making 
the  tenure  sufficiently  long  to  insure  a  firmness  and  continuity 
of  policy  and  stability  of  administrative  system  on  the  part 
of  each  individual  executive  head.  Were  the  tenure  of  office 
very  short,  as,  for  example,  one  year,  a  chief  executive  might 
be  unwilling  to  risk  the  ill  will  of  the  people  in  pursuit  of  the 
policy  he  deemed  right  in  view  of  the  fact  that  he  had  to  give 
up  his  position  so  soon,  or  he  might  hesitate  to  attempt  some 
great  undertaking  in  view  of  the  burden  he  would  have  to  pass 
on  to  his  successors.  On  the  other  hand,  were  the  tenure  of 
office  very  long,  as,  for  example,  ten  or  fifteen  years,  the  tempta- 
tion would  be  correspondingly  great  for  an  unprincipled  man 
to  use  all  the  means  which  his  high  position  yields  to  gratify 
his  ambitions  and  perpetuate  his  power  indefinitely.  In  general, 
democratic  states  are  in  agreement  upon  a  term  of  from  four 
to  seven  years. 

The  question  of  eligibility  for  reelection  is  involved  in  this 
consideration.     In  favor  of  reeligibility  it  may  be  said  that 
the  state  ought  to  have  the  opportunity  to  continue 
the  services  of  an  executive  head  who  has  been 
notably   successful   hi   the   conduct   of   his   office,  tionof 
Yet  it  is  true,  on  the  other  hand,  that  the  prospect  ^^ve 
of  reelection  may  have  a  harmful  effect  on  the  heads, 
activities  of  the   executive  head,  as  where  he  is 
restrained  from  certain  procedure  for  fear  of  incurring  the 
displeasure  of  the  electorate  or  where  he  yields  to  popular 
pressure  in  some  matter  of  doubtful  expediency  that  he  may 


74      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

gain  the  favor  of  the  electorate.  In  the  United  States  the 
lack  of  any  reference  in  the  constitution  to  eligibility  of  Presi- 
dents for  reelection  has  permitted  a  number  of  chief  executives 
to  succeed  themselves,  but  the  custom  established  by  the  first 
President  of  restricting  the  number  of  terms  to  two  has  not 
up  to  this  time  been  broken.  In  Mexico,  where  the  term  of 
the  executive  head  is  fixed  at  six  years  and  the  question  of 
reeligibility  not  mentioned,  one  man  (Diaz)  was  continuously 
in  power  from  1884  to  1910.  In  France  a  President  has  rarely 
succeeded  himself,  although  he  may  do  so  under  the  consti- 
tution. 

In  the  last  few  paragraphs  we  have  been  considering  the 
selection  and  tenure  of  office  of  the  nominal  executive  heads 
Nominal  and  °^  ^he  states.  It  has  already  been  emphasized  that 
actual  exec-  in  some  states  the  nominal  executive  head  is  not  the 
utive  heads.  same  as  foe  actual  executive  head.  We  should, 
therefore,  include  in  our  consideration  an  examination  of  the 
actual  executive  heads  in  such  states. 

The  actual  executive  head  differs  from  the  nominal  executive 
head  most  notably  in  England,  France,  and  Italy. 

The  system  whereby  the  actual  executive  powers  reside  in 
a  body  of  ministers  rather  than  in  the  nominal  executive  head 
England-  originated  in  England  (where  the  body  of  ministers 
cabinet  sys-  is  known  conventionally  as  the  cabinet)  and  has 
tem*  attained  its  most  typical  form  there.  Like  many 

other  political  institutions,  as  the  bicameral  legislature,  the 
cabinet  system  is  the  product  of  evolution  and  not  of  deliberate 
invention. 

The  cabinet  system  developed  out  of  the  king's  privy  coun- 
cil of  the  eleventh  century.  This  privy  council,  from  the 
eleventh  to  the  seventeenth  century  a  powerful  and  important 
body,  constituted  an  advisory  board  for  the  sovereign.  Later 
kings,  believing  the  privy  council  too  large  for  confidential 
consultation,  consulted  only  with  a  few  of  its  leading  mem- 
bers and  thus  developed  an  inner  committee  of  the  privy 
council,  originally  scornfully  referred  to  as  the  cabinet,  or  the 


THE  EXECUTIVE  75 

cabinet  council.  From  this  cabinet  has  descended  directly 
the  present  cabinet.  The  privy  council  still  exists,  but  all  of 
its  powers  are  in  the  hands  of  this  select  committee  known 
as  the  cabinet.  The  cabinet  has  no  recognized  legal  status; 
the  king  does  not  meet  with  it ;  it  has  no  secretary  and  keeps 
no  records  of  its  deliberations ;  it  is  summoned  by  its  head,  the 
prime  minister.  It  still  remains,  legally,  a  select  committee 
of  the  privy  council,  and  has  no  legal  authority  except  by 
virtue  of  its  being  a  part  of  the  privy  council. 

The  main  features  of  the  cabinet  system  as  it  exists  at  present 
in  England  are :  (1)  the  appointment  by  the  king  of  a  prime 
minister  from  the  dominant  party  in  the  House  of  Commons ; 

(2)  the  formation  by  the  prime  minister  of  a  cabinet  to  be 
associated  with  him  and  composed  entirely  of  leaders  of  the 
dominant  party,   usually  members  of  the   legislative  body; 

(3)  the  complete  and  immediate  responsibility  of  the  cabinet 
to  the  popular  chamber  of  the  legislature ;  and  (4)  the  assump- 
tion by  the  cabinet  of  all  the  functions  of  the  executive  in 
government  and  a  direct  participation  by  the  cabinet  in  the 
functions  of  the  legislative.     The  English  cabinet  acts  as  a 
body  in  initiating,  defending,   and  urging  legislation  in  the 
Parliament;    and  the  members   of  the   cabinet  individually 
head   the   various   executive   departments   which   administer 
the  laws  of  the  state.     So  long  as  the  policies  and  acts  of  the 
cabinet  command  majorities  in  the  House  of  Commons,  just 
so  long  the  cabinet  remains  in  power;   when  defeated  in  the 
Commons  on  a  vote  implying  lack  of  confidence,  one  of  two 
courses  is  open  to  it,  either  to  resign  or  to  dissolve  Parliament 
and  seek  support  in  the  members  of  a  newly  elected  House  of 
Commons. 

The  English  system  has  never  developed  in  France  into  the 
typical  form  in  which  it  exists  in  England,  owing  largely  to 
the  fact  that  the  party  system  in  France  has  had  a  France. 
different  development.     The  success  of  the  English  cabinet 
system  is  largely  due  to  the  fact  that  for  generations  system- 
only  two  great  political  parties  have  elected  representatives 


76      AN   INTRODUCTION   TO   THE   STUDY   OF  GOVERNMENT 

to  the  House  of  Commons,  one  of  which  parties  has  always 
been  able  to  command  a  majority  of  votes.  In  France,  how- 
ever, a  large  number  of  political  groups  exist  in  the  Chamber 
of  Deputies,  and  these  groups  are  constantly  shifting  in  mem- 
bership and  numbers,  no  one  group  under  ordinary  circum- 
stances possessing  a  majority  of  votes.  Thus,  whereas  in 
England  the  cabinet  is  all  of  one  political  party,  in  France 
the  cabinet  is  a  mixture  of  several  political  groups  in  the  en- 
deavor to  satisfy  a  majority  of  the  chamber.  The  cabinets 
in  France  are  thus  always  compromise  or  coalition  cabinets 
and  are  subject  to  sudden  loss  of  legislative  support  on  any 
shifting  of  members  of  the  coalition.  Ministries  rarely  last 
long  in  France,  the  average  in  the  history  of  the  present  gov- 
ernment being  less  than  a  year.  The  results  upon  the  con- 
tinuity of  policy  and  the  stability  of  government  are  necessarily 
harmful.  In  its  general  features,  outside  of  the  above  conditions, 
the  system  resembles  the  typical  system  in  England ;  the  cabinet 
as  a  whole  participates  in  the  legislative  functions,  and,  by 
the  appointment  of  its  members  at  the  head  of  the  executive 
departments,  administers  the  laws  of  the  state.  The  presi- 
dency is  largely  a  ceremonial  office,  none  of  its  acts  being  legal 
without  the  approval  of  the  ministry. 

Conditions  in  Italy  resemble  those  in  France,  in  that  the 
political  groups  are  many  and  varied.  The  distinctions  be- 
itaiy :  cabi-  tween  them  are  more  consistently  maintained, 
net  system,  however,  so  that  there  is  less  possibility  of  fusion 
or  coalition  and  consequently  more  difficulty  in  choosing  a 
ministry  which  can  keep  the  support  of  the  chamber.  The 
king  has  theoretically  somewhat  more  liberty  in  his  choice  of 
a  cabinet,  and  somewhat  more  influence  over  it  when  chosen, 
than  is  the  case  in  England,  but  in  actual  practice  the  leaders 
of  the  majority  are  forced  upon  him  and  the  responsibility  of 
the  ministers  to  the  lower  chamber  of  the  legislature  is  un- 
questioned. The  main  features  of  cabinet  government  exist 
here  as  in  France.  The  executive  acts  of  the  king  are  com- 
pletely controlled  by  his  ministry. 


THE   EXECUTIVE  77 

The  system  of  cabinet  government  has  decided  advantages 
which  have  appealed  to  states  abroad.  The  close  and  har- 
monious cooperation  secured  between  the  executive  gpread  of 
and  the  legislative  branches  of  government,  and  cabinet  gov- 
the  ultimate  dependence  of  the  actual  executive  ernment- 
upon  the  consent  of  the  popularly  elected  house,  have  seemed 
to  insure  unity  and  facility  in  the  operation  of  government 
on  the  one  hand  and  the  responsibility  of  the  actual  executive 
to  the  people  on  the  other.  The  system  is  now  established 
in  Belgium,  Holland,  Norway,  Sweden,  and  Denmark,  in 
addition  to  the  states  which  we  have  examined  more  in  detail. 
On  this  side  of  the  ocean  the  conspicuous  example  of  the  United 
States  has  operated  to  cause  imitation  of  the  essentials  of  its 
system  rather  than  that  of  England. 

IV.   ORGANIZATION  OF  EXECUTIVE  DEPARTMENT 

Emphasis  has  been  laid  upon  the  quantity  and  importance 
of  the  business  which  the  executive  is  called  upon  to  handle. 
The  efficient  performance  of  this  business  can  be 
accomplished  successfully  only  by  careful  organ- 
ization  and  regular  procedure.  The  "red  tape,"  executive  to 
which  is  so  often  blamed  for  delay,  is  but  a  neces-  o^usine^s8 
sary  part  of  the  procedure;  where  in  one  case  it 
may  cause  temporary  and  apparently  needless  delay,  in  a 
hundred  it  is  responsible  for  the  orderly  and  rapid  dispatch 
of  business. 

The  most  effective  method  of  planning  the  work  of  the 
executive  is  to  divide  it  into  a  number  of  parts.  The  duties 
of  the  executive,  both  in  his  administrative  and  , 

.,  »  „  .    .  ,    Division  of 

executive    capacity,    fall    naturally    into    several  work:  de- 


categories;  there  is,  for  example,  his  military 
duty,  his  naval  duty,  his  duty  in  connection  with 
foreign  affairs,  his  duty  in  connection  with  internal  affairs, 
his  duty  relative  to  the  public  moneys,  etc.  When  various 
divisions  are  made,  the  executive  assigns  to  each  department 


78      AN   INTEODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

a  head  or  chief  whose  particular  province  it  is  to  superintend 
the  performance  of  the  executive  duties  of  that  department. 
Thus  in  England  the  executive  duties  are  distributed  among 
as  many  as  twenty  departments;  in  France  among  twelve; 
in  Germany  among  eight  (or  fifteen  if  we  include  certain  im- 
perial bureaus) ;  in  the  United  States  among  ten,  headed 
respectively  by  the  Secretary  of  State,  Secretary  of  the  Treas- 
ury, Secretary  of  War,  Attorney-general,  Postmaster-general, 
Secretary  of  the  Navy,  Secretary  of  the  Interior,  Secretary 
of  Agriculture,  Secretary  of  Commerce,  and  Secretary  of  Labor. 

The  heads  of  these  various  departments  are  appointed  by 
the  chief  executive  and  act  not  only  as  the  directing  heads 
Double  duty  °*  ^eir  departments,  but  also  as  an  advisory  body 
of  depart-  to  the  chief  executive.  In  states  such  as  England, 
ment  heads.  prance)  an(j  Italy  the  sovereign  or  president  must 
choose  his  advisers  from  among  the  leaders  of  the  majority 
in  the  legislature,  and  the  nominal  executive  has  to  approve 
the  policies  of  his  ministers.  In  the  United  States,  however, 
and  other  states  similarly  governed,  the  executive  head  is 
free  to  choose  whatever  men  he  wishes  to  head  the  various 
departments,  and  is  likewise  free  to  accept  or  overrule  their 
advice. 

The  process  of  subdivision  in  the  business  of  the  executive 
goes  still  further,  each  department  being  divided  into  bureaus 
headed  by  a  commissioner  responsible  to  the  chief 
division  in  "  of  the  department.  For  example,  the  Department 
depart-  of  the  Interior  in  the  United  States  contains  among 
others  the  Bureau  of  Public  Lands,  the  Pension 
Bureau,  the  Patent  Bureau,  the  Bureau  of  Indian  Affairs, 
the  Census  Bureau,  the  Bureau  of  Education,  each  headed 
by  a  commissioner  taking  his  title  from  his  office,  as  the  Com- 
missioner of  Public  Lands,  the  Commissioner  of  Patents,  the 
Commissioner  of  Education. 

This  process  of  division  and  subdivision  into  a  hierarchy 
of  officials  to  perform  the  executive  duties  in  no  way  removes 
the  responsibility  from  the  actual  executive,  but  it  does  greatly 


THE   EXECUTIVE  79 

simplify  his  labor.  The  details  of  administration  are  handled 
by  subordinates  experienced  in,  and,  theoretically  at  least, 
especially  qualified  for,  such  work.  The  time  of  the 
actual  executive  is  left  free  to  use  in  the  broader 
and  more  complicated  problems  of  his  office,  such  as  in  leaving 
the  policies  of  the  state  in  its  relation  to  other  states,  £eadUfree 
the  policies  of  the  executive  in  his  manifold  and  from  details 
complex  relations  with  the  legislative  body,  the  con- 
sideration  of  measures  submitted  to  him  from  that 
body  for  approval  or  of  measures  and  suggestions  to  be  sub- 
mitted by  him  to  that  body  for  its  deliberations. 


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THE   EXECUTIVE 


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TABLE  OP  MINISTEKS  IN  ENGLAND,  FRANCE,  AND  ITALY 
SINCE  1880 


ENGLAND 
Prime  Minister 

FRANCE 
Premier 

ITALY 
Premier 

Gladstone               Apr.    1880 

Jules  Ferry 

Sept.  1880 

Cairoli 

July    1879 

Gambetta 

Nov.  1881 

Depretis 

May   1881 

De  Freycinet 

Jan.     1882 

Duclero 

Aug.    1882 

Fallieres 

Jan.     1883 

Jules  Ferry 

Feb.    1883 

Salisbury                 July    1885 

Brisson 

Apr.    1885 

Gladstone                Feb.    1886 

De  Freycinet 

Jan.    1886 

Salisbury                 Aug.    1886 

Goblet 

Dec.    1886 

Rouvier 

May   1887 

Crispi 

July    1887 

Tirard 

Dec.    1887 

Floquet 

Apr.    1888 

Tirard 

Feb.    1889 

De  Freycinet 

Mar.  1890 

Gladstone    1           >.         1SQ9 
Rosebery     /          Aug<   189' 

Loubet 
Ribot 

Feb.    1892 
Dec.    1892 

Rudini 
Giolitti 

Feb.    1891 
May   1892 

Dupuy 

Apr.    1893 

Casimir-Perier 

Dec.    1893 

Crispi 

Dec.   1893 

Dupuy 

May    1894 

Ribot 
Bourgeois 
Meline 

Jan.     1895 
Oct.     1895 
Apr.    1896 

Rudini 

July    1896 

Brisson 

June   1898 

Pelloux 

June   1898 

Dupuy 

Oct.    1898 

Waldeck-Rous- 

seau 

June   1899 

Saracco 

June   1900 

Zanardelli          Feb.    1901 

Combes 

June   1902 

Campbell-Banner-  1 

Giolitti 

Nov.  1903 

man                     [  Dec.  1905 

Rouvier 

Jan.    1905 

Fortis 

Mar.  1905 

Asquith                   J 

Sarrien 

Mar.  1906 

Sonnino 

Feb.    1906 

Clemenceau 

Oct.     1906 

Giolitti 

May   1906 

Briand 

July    1909 

Sonnino 

Dec.    1909 

Luzzatti 

Mar.  1910 

Monis 

Mar.  1911 

Giolitti 

Mar.  1911 

Caillauz 

June   1911 

Poincarfi 

Jan.     1912 

Briand 

Jan.     1913 

Barthou 

Mar.   1913 

Doumerque 

Dec.    1913 

Ribot 

June   1914 

Salandra 

Mar.  1914 

Viviani 

June   1914 

CHAPTER  VI 
THE   JUDICIARY 

THE  judiciary  is  that  organ  of  government  charged  with 
the  interpretation  and  application  of  the  law.  To  its  part 
Definition  ^a^s  ^e  task  of  deciding  disputed  points  of  law, 
and  func-  of  discerning  and  protecting  the  rights  and  privileges 
tions.  Q£  individuals  under  the  law,  of  determining  infrac- 

tions of  the  law  and  inflicting  penalties  therefor.  The  necessity 
for  a  department  with  such  functions  is  due  to  the  nature  of 
government  and  its  relations  with  individuals,  and  to  the 
conflicts  which  inevitably  arise  between  individuals  themselves. 

It  is  inconceivable  that  any  legislative  body,  however  wise 
and  well  organized,  can  foresee  and  provide  for  all  the  changes 
in  social  and  economic  conditions  incident  to  the  natural 
development  of  the  state :  it  is  the  function  of  the  judiciary 
to  apply  existing  law  to  individual  cases  resulting  from  such 
changes.  In  states  having  a  written  constitution  not  subject 
to  amendment  by  the  ordinary  processes  of  legislation,  as  is 
the  case  in  the  United  States,  it  is  possible  that  the  legislative 
body  will  pass  legislation  not  in  accord  with  the  provisions 
of  this  constitution :  it  is  the  function  of  the  judiciary  to 
determine  whether  or  not  legislation  is  legal.  In  all  states 
the  executive  is  vested  with  powers  of  interference  with  the 
liberties  and  property  of  the  individual  —  powers  necessary 
and  proper  if  rightly  used  for  the  benefit  of  the  whole  people : 
it  is  the  function  of  the  judiciary  to  afford  to  any  person  who 
feels  aggrieved  a  just  and  impartial  hearing  and  to  determine 
whether  the  executive  power  was  legally  exercised.  In  the 
modern  state  separate  individuals  are  continually  in  dispute 
with  one  another  as  to  their  relative  rights  under  the  law: 
it  is  the  function  of  the  judiciary  to  settle  such  disputes  accord- 

88 


THE   JUDICIARY  89 

ing  to  law.  The  legally  drawn  and  executed  laws  of  the  state 
are  continually  being  broken  by  individuals  who  try  thus  to 
prey  upon  society  for  their  own  gain :  it  is  the  function  of  the 
judiciary  to  try  such  individuals  and  to  mete  out  to  them 
such  punishment  as  is  fitting  within  the  limits  set  by  law. 

The  judiciary  may  be  said  to  be  the  great  adjusting  force 
in  government,  on  the  one  hand  upholding  the  established 
rights  of  the  individual  against  encroachment  by  another 
individual  or  against  any  conscious  or  unconscious  usurpation 
on  the  part  of  the  powerful  legislative  and  executive  branches 
of  government,  and  on  the  other  hand  curbing  the  uprisings 
of  individuals  or  bodies  of  individuals  who  rebel  against  the 
legal  acts  or  enactments  of  the  legislative  or  executive  branches. 

The  nature  and  importance  of  the  judicial  functions  require 
two  qualifications  for  the  personnel  of  this  department.     In 
the  first  place,  the  judges  must  have  a  thorough   QU^^. 
knowledge  pf  law.     Members  of  the  judiciary  are  tionsof 
thus  necessarily  technical  specialists.     In  the  second  Judges- 
place,    judges    must    be    absolutely    and    unqualifiedly    im- 
partial. 

The  existence  of  a  personnel  having  such  char- 
acteristics  depends  upon  three  factors :  the  method  judges  with 
of  selection,  the  tenure  of  office,  and  the  rate  of  fictions, 
compensation. 

Three  methods  of  choice  exist :  choice  by  legislative  appoint- 
ment, by  executive  appointment,   and  by  popular  election. 
Any  one  of  these  is  open  to  theoretical  objections.   Meth0dof 
(1)  The  legislative  body  is  hardly  equipped  to  esti-  appoint- 
mate  fairly  the  ability  and  fitness  of  a  man   for  * 
judge:    it  is  too  liable  to  be  swayed  by    party    prejudice. 
Furthermore,  the  election  of  judges  by  the  legislature  tends  to 
give  the  legislature  a  power  over  the  judiciary  which  might 
foster  tyranny.     (2)  The  second  of  the  objections  just  stated 
applies  equally  to  the  selection  of  judges  by  the  executive  head; 
this  method,  it  is  asserted,  tends  to  place  the  control  of  the 
judiciary  under  the  executive.     (3)  The  method  of  selection 


90      AN   INTRODUCTION   TO  THE   STUDY  OF  GOVERNMENT 

by  popular  election  is  to  be  criticised  on  the  ground  that  the 
people  at  large  are  not  qualified  to  estimate  the  highly  technical 
qualities  necessary  for  judges;  that  they,  as  the  legislature, 
are  too  liable  to  be  swayed  by  party  prejudices,  and  that  judges 
elected  by  popular  vote  are  under  great  temptation  to  temper 
their  decisions  to  popular  sentiment  in  order  to  increase  their 
chances  of  reelection. 

Of  the  three  methods,  the  least  objectionable  is  selection  by 
the  executive,  and  this  is  the  method  used  in  all  the  great  states 
of  the  world  to-day.  A  wise  chief  executive  is  better  able 
to  estimate  the  qualifications  of  a  judge  than  are  members  of 
the  legislative  body  or  the  people  at  large.  Furthermore, 
selection  by  the  executive  prevents  the  undignified  intrusion 
of  party  politics.  Control  by  the  executive  is  prevented  by 
the  conditions  of  the  tenure  of  office. 

In  most  of  the  great  states  of  the  world  at  the  present  time 
judges  are  appointed  to  serve  during  good  behavior.  In  other 
Tenure  of  words,  judges  are  appointed  for  life,  subject  to 
office  of  removal  for  cause.  This  provision  for  the  tenure 
judges.  Q£  Ofgce  offsets  the  single  important  objection  to 
choice  by  the  executive  head;  namely,  that  such  a  method 
of  choice  gives  the  executive  a  degree  of  control  over  the  judi- 
ciary. If  the  power  of  appointment  and  the  power  of  dismissal 
were  both  vested  in  the  chief  executive,  it  is  evident  that  he 
could,  if  unscrupulous  in  the  use  of  these  powers,  have  an  im- 
mense influence  over  the  judiciary;  but  where,  after  appoint- 
ment, a  judge  is  secure  in  his  place  for  life,  such  judge  may 
feel  free  to  do  his  duty  without  prejudice  of  any  kind,  either 
for  or  against  the  chief  executive.  In  some  countries,  as 
Italy,  the  executive  has  the  power  to  change  the  station  of 
judges,  reassigning  them  from  one  station  to  another  on  con- 
dition that  such  reassignment  be  not  to  a  station  of  lower 
rank.  This  power  has  been  exercised  at  times  to  remove 
certain  judges  hostile  to  the  executive  policies  to  stations 
where  their  jurisdiction  and  decisions  would  not  interfere 
with  such  policies.  Action  of  this  kind  is  in  the  nature  of 


THE   JUDICIARY  91 

control  by  the  executive  over  the  judiciary  and  is  partially 
responsible  for  the  weakness  of  the  judiciary  in  Italy.  As  a 
general  rule,  it  may  be  stated  that  the  tenure  of  office  should 
be  such  as  to  allow  no  interference  of  any  kind  by  another 
department,  except  when  misbehavior  of  a  judge  is  charged 
and  proven. 

The  third  factor  to  insure  the  high  quality  of  judges  is  the 
compensation  allowed  them.     It  is  manifest,  first,  that  this 
compensation  should  be  such  as  to  enable  a  judge  compensa- 
to  devote  his  entire  time  and  efforts  to  the  service  tionof 
of  the  state,  and  second,  that  this  compensation  3*udges- 
be  in  some  way  guaranteed  to  him  so  long  as  he  shall  serve 
the  state.     In  the  United  States  the  salaries  paid  are  liberal, 
and,  in  the  case  of  justices  of  the  Supreme  Court,  are  guar- 
anteed under  the  constitution  not  to  be  diminished  during 
their  term  of  office.     Similar  conditions  exist  in  other  great 
states;  most  of  them,  however,  merely  guaranteeing  that  the 
salaries  shall  not  be  changed,  thus  leaving  no  chance  for  in- 
crease.    With  their  material  welfare  provided  for  and  secure 
for  the  future,  the  judges  can  do  their  duty  with  courage  and 
independence. 

In   discussing   the   executive   we   noticed    a   division    and 
subdivision  into  departments  and  bureaus  to  cor-  Qrganiza- 
respond    with    the    different     character    of     the   tion  of  judi- 
duties   to   be   performed;   similarly  in  the  organi-  ^J3e'SOf 
zation  of  the  judiciary  and  of  the  courts  we  find  courts  and 
divisions.  judges' 

The  most  fundamental  feature  of  division  common  to  the 
judicial  organization  of  all  states  is  the  division  of  the  courts 
for  the  trial  of  cases  into  separate  ranks  or  gradations,  corre- 
sponding to  the  nature  and  importance  of  the  cases  involved. 
Thus  in  Germany  from  lowest  to  highest  the  courts  range  as 
follows :  Amtsgericht,  Landgericht,  Oberlandesgericht,  and  Reichs- 
gericht,  the  first  named  being  a  court  limited  to  petty  cases 
and  the  last  named  being  the  supreme  court  of  the  Empire. 
In  France  the  courts  range  upward  from  the  courts  of  the 


92      AN   INTRODUCTION  TO  THE   STUDY   OF   GOVERNMENT 

justice  of  the  peace  (juge  de  paix),  through  the  tribunals  of 
first  instance  (tribunaux  de  premiere  instance),  the  courts  of 
appeal  (cours  d'appel),  the  assize  courts  (cours  d'assises),  to 
the  court  of  cassation  (cour  de  cassation).  In  the  United 
States  the  entire  country  is  divided  into  nine  judicial  circuits, 
and  each  circuit  is  subdivided  into  the  number  of  districts 
deemed  necessary  to  handle  the  cases  that  arise.  Correspond- 
ing with  these  districts  and  circuits  we  have  judges'  of  the 
district  court,  judges  of  the  circuit  court,  judges  of  the  circuit 
court  of  appeals,  and,  over  and  above  all,  justices  of  the  Supreme 
Court  of  the  United  States.  In  all  the  countries  the  attempt 
is  made  to  give  a  pyramidal  arrangement  to  the  system,  its 
base  being  composed  of  a  large  number  of  courts  distributed 
through  the  state  according  to  the  density  of  population  and 
having  a  primary  jurisdiction  in  most  cases,  and  its  apex  being 
a  single  national  supreme  court  to  which  cases  of  importance 
and  difficulty  may  be  carried  on  appeal. 

Not  only  are  courts  thus  divided  into  separate  grades  for 
the  dispatch  of  cases,  but  within  the  courts  themselves  is 

.  .  commonly  a  division  according  to  the  nature  of 

cording  to  the  case  under  trial.  The  vast  majority  of  cases 
the  nature  come  under  the  application  either  of  what  is  known 

of  the  case.  ....  .     .  .    .  .    .,  ,  ^ 

as  criminal  law  or  what  is  known  as  civil  law.  Con- 
sequently, in  all  states  we  have,  as  a  most  fundamental  and 
noteworthy  feature  of  the  judicial  system,  two  classes  of  courts : 
(1)  the  courts  having  jurisdiction  over  civil  cases,  and  (2)  those 
having  jurisdiction  over  criminal  cases.  In  some  of  the  lower 
grades  of  courts,  the  courts  handle  cases  of  both  kinds  where 
petty  offenses  or  small  amounts  are  in  question.  On  the 
continent  of  Europe  the  states  generally  have  an  additional 
system  of  courts  known  as  administrative  courts  to  handle 
cases  where  government  officials  are  involved.  In  addition 
to  these  civil  and  criminal  courts,  and  administrative  courts, 
each  state  has  special  courts  to  handle  cases  of  a  special  char- 
acter, as  ecclesiastical  courts,  commercial  courts,  courts  of 
claims,  etc.  Of  the  divisions  indicated  above,  the  most  im- 


THE   JUDICIARY  93 

portant  are  those  founded  on  the  distinctions  between  criminal 
and  civil  law,  and  those  termed  administrative  courts;  the 
jurisdiction  and  nature  of  these  will  be  indicated  in  more 
detail. 

All  great  states  distinguish  between  offenses  which  injure 
the  state  or  community  and  offenses  which  injure  Criminal 
the  individual.     To  correspond  with  this  distinction  and  civil 
we  have  the  system  of  criminal  law  and  the  sys-  cases  and 

J  courts. 

tern  of  civil  law. 

A  crime,  against  which  procedure  is  in  accordance  with  the 
principles  of  criminal  law,  is  an  omission  of  a  duty  commanded, 
or  the  commission  of  an  act  forbidden,  by  public  law,  which 
omission  or  commission  affects  injuriously  public  rights  or 
is  a  breach  of  the  duties  due  to  the  whole  community.  The 
emphasis  is  upon  the  injury  done  to  the  public  security,  peace, 
and  dignity,  although  such  injury  may  be  in  the  form  of  a 
private  wrong.  Hence,  under  criminal  law  would  be  tried 
offenses  against  the  order  and  security  of  the  state,  as  treason ; 
offenses  against  the  police  administration  or  public  authority 
in  general,  as  breach  of  the  peace;  offenses  against  the  life, 
health,  liberty,  fame,  and  constituted  rights  and  privileges  of 
any  individual,  as  murder  or  libel ;  and  offenses  against  prop- 
erty, as  theft  and  forgery.  Criminal  law  contains  the  defini- 
tion of  the  offenses,  the  principles  of  procedure  in  trial,  and 
the  statement  of  the  penalties  and  punishments  with  provisions 
for  their  enforcement. 

•j  Distinguished  from  the  criminal  law  is  the  civil  law,  that 
body  of  law  relating  to  the  private  rights  of  individuals  in  a 
community,  infringement  upon  which  does  not  necessarily 
constitute  an  offense  against  the  public  or  community.  Thus 
a  dispute  between  two  individuals  as  to  the  boundary  line 
between  their  respective  properties  would,  if  no  further  interest 
were  involved,  naturally  be  a  suit  in  civil  law. 

The  two  bodies  of  law  do  overlap,  however ;  it  may  be  said 
that  a  large  proportion  of  omissions  and  commissions  are  both 
"wrongs"  for  which  the  injured  party  may  claim  compensation 


94      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

and  also  offenses  for  which  the  offender  may  be  prosecuted  in 
the  interest  of  the  community. 

The  courts  of  various  great  states  recognize  by  their  organ- 
ization this  fundamental  difference  in  the  nature  of  cases. 
Civil  and  Although  often  the  lower  grades  of  courts,  which 
criminal  are  restricted  to  cases  of  small  importance,  have 
courts.  ^Q  game  organization  for  the  trial  of  both  criminal 

and  civil  cases,  the  higher  courts  are  usually  divided.  Thus 
in  Germany  the  Reichsgericht,  the  highest  court  of  the  Empire, 
consists  of  four  criminal  and  six  civil  parts  for  handling  respec- 
tively the  criminal  and  civil  cases  which  come  before  it;  in 
France  the  cour  de  cassation,  the  highest  court  of  the  French 
system,  consists  of  three  sections :  the  court  of  petitions  (chambre 
de  r equates),  the  criminal  court,  and  the  civil  court,  the  first 
named  being  a  section  which  in  civil  cases  submitted  on  appeal 
gives  or  denies  the  right  of  appeal  to  the  civil  court  section; 
in  England  the  distinct  system  of  courts  is  more  complete 
than  in  the  countries  just  mentioned,  civil  cases  of  importance 
being  tried  in  the  county  courts  or  in  the  High  Court  of  Justice, 
and  criminal  cases  in  the  courts  of  the  general  system,  including 
the  courts  of  the  justice  of  the  peace,  the  courts  of  quarter 
sessions,  the  assize  courts,  and  the  court  of  criminal  appeal. 

The  administrative  courts  form  a  notable  feature  of  the 
organization  of  the  judiciary  in  the  great  states  of  continental 
Europe.  The  purpose  of  these  courts  is  to  provide 
admSstra-  sPecial  tribunals  for  the  trial  of  cases  arising  from 
tive  courts  disputes  between  individuals  and  administrative 
countries1  officials  or  from  disputes  between  administrative 
officials  themselves.  The  advantage  claimed  for 
these  special  courts  is  that  the  nature  of  administrative  dis- 
putes is  many  times  so  peculiar  that  ordinary  judges  would 
not  be  qualified  to  determine  the  issue.  When  a  government 
officer  acting  in  his  official  capacity  is  a  party  to  a  dispute, 
he  cannot,  according  to  this  theory,  be  treated  like  an  ordinary 
individual,  for  if  he  be,  the  work  of  government  is  liable  to  be 
obstructed. 


THE  JUDICIAKY  95 

The  objection  to  this  system  of  administrative  courts  is 
that  it  tends  to  destroy  the  safeguard  of  the  citizen  against 
the  tyranny  of  the  administrative  officials.  In  these  special 
courts  there  is  a  tendency  to  emphasize  the  privileges  of  the 
administrative  officials  over  the  rights  of  the  individual  citizen. 
England  and  the  United  States  have  never  introduced  such 
courts.  In  both  countries  the  officials  of  government  (except 
the  king,  and  the  President  during  his  term  of  office)  are  sub- 
ject to  the  jurisdiction  of  the  ordinary  courts. 

Another  notable  feature  of  the  organization  of  the  judiciary 
for  the  performance  of  its  work  is  that  in  all  states  the  judges 
act,  according  to  the  nature  and  gravity  of  the 
cases  under  consideration  or  according  to  the  courts  Organiza- 
in  which  they  serve,  either  singly  or  in  separate  judiciary 
bodies  relatively  small  in  number.    The  judicial  jjing|y  or  in 
powers  are  not   centralized  under  a  single  head,  groups, 
as  are  the'  executive  powers,  nor  are  they  exercised 
by  all  the  members  of  the  judiciary  in  joint  session,  as  are 
the  legislative  powers.    A  single  judge  may  conduct  cases  in 
the  lower  courts,  two  or  three  judges  together  may  conduct 
a  court  of  a  higher  grade  (as  the  circuit  court  of  appeals  in  the 
United  States),  and  a  small  body  of  judges  may  sit  together 
in  the  highest  court  (as  do  the  justices  in  the  Supreme  Court 
of  the  United  States).     The  whole  system  is  unified  by  the 
position  of  the  supreme  court  at  the  top  of  the  pyramid,  but 
in  all  ordinary  procedure  the  courts  act  separately  and  in- 
dependently. 

A  feature  in  the  division  of  labor  for  the  judiciary  in  Eng- 
land and  the  United  States  is  the  existence  of  the  jury  system. 
The  right  of  trial  by  jury  has  come  to  be  practically 
a  most  important  element  in  the  system  in  these  tionofjudi- 
two  states,  to  such  a  degree  that  it  has  been  wittily  ?iary :  ^e^ 
said  that  the  ultimate  aim  of  the  English  con-  Jurysys 
stitution  is  to  get  twelve  good  men  into  a  box. 

A  jury  is  a  body  of  laymen  summoned  and  sworn  to  inquire 
into  the  truth  as  to  questions  of  fact  raised  in  legal  proceedings, 


96      AN   INTRODUCTION   TO   THE   STUDY   OF  GOVERNMENT 

whether  criminal  or  civil.  The  jury  and  the  judge  act  to- 
gether in  the  case,  the  jury  acting  on  the  one  hand  as  an  assist- 
ant to  the  judge  and  on  the  other  as  a  check  on  the  judge. 
The  jury  assists  the  judge  in  the  decision  on  matters  of  fact, 
not  of  law.  The  jury  acts  as  a  check  on  the  power  which  the 
judge  would  have  were  he  intrusted  with  the  right  to  decide 
questions  both  of  fact  and  of  law. 

The  chief  advantage  of  the  jury  system  lies  in  the  effect 
it  has  upon  the  people  at  large  in  their  attitude  toward  the 
courts  and  law.  Where  the  administration  of  justice  is  wholly 
in  the  hands  of  lawyers  and  judges,  an  impression  is  liable  to 
exist  that  law  is  a  mystery  unintelligible  to  people  at  large, 
and  that  justice  only  proceeds  through  the  devious  paths  of 
legal  precedent  and  formulae.  With  the  jury  system,  on  the 
contrary,  public  attention  is  drawn  to  the  courts  and  their 
methods,  and  men  learn  to  respect  their  impartiality  and  to 
believe  in  their  decisions. 

As  the  jury  system  is  established  at  present,  a  grave  dis- 
advantage lies  in  the  necessity  for  a  unanimous  decision  of 
the  jurors.  It  is  wise,  of  course,  that  justice  should  err  on  the 
side  of  mercy,  but  a  system  that  allows  a  single  obstinate 
individual  to  defeat  the  honest  convictions  of  eleven  men  as 
intelligent  as  himself  tends  to  delay  or  even  to  defeat  justice. 

In  states  where  the  judicial  system  is  organized  wholly  as 
a  unit  in  the  organization  of  government,  as  in  Germany, 
jurisdic-  France,  and  England,  all  the  courts  are  state  courts  ; 
tionof  in  the  United  States,  however,  two  separate  and 


Federal  UfS  distinct  systems  of  courts  exist  :  the  courts  of  the 
and  com-  United  States  (the  various  grades  of  which  have 
(•o^rtTin  been  outlined)  and  the  courts  of  the  separate  com- 
the  United  monwealths  of  the  United  States.  In  this  country 
the  courts  of  the  various  commonwealths  handle 
the  larger  proportion  both  of  civil  and  criminal  cases. 
In  general,  the  federal  courts  deal  with  cases  in  which 
the  interests  involved  either  concern  the  United  States  as 
a  whole  or  are  such  as  could  not  properly  be  handled 


THE   JUDICIARY  97 

by  the  separate  commonwealth  courts.  Thus  cases  of  the 
following  character  would  fall  within  the  jurisdiction  of  the 
federal  courts :  (1)  Cases  involving  disputes  to  which  the 
federal  government  is  a  party;  (2)  cases  involving  an  inter- 
pretation and  application  of  the  federal  constitution,  of  the 
laws  of  the  United  States,  or  of  treaties  legally  entered  into 
under  the  constitution  and  laws ;  (3)  cases  involving  ambassa- 
dors, ministers,  or  public  officials  of  a  like  character,  and  consuls ; 

(4)  cases    involving    admiralty    and    maritime    jurisdiction; 

(5)  cases  involving  disputes  between   commonwealths  of  the 
United  States  or  between  a  commonwealth  and  a  foreign  state. 

In  the  due  exercise  of  its  functions  and  powers  the  judiciary 
in  all  states  is  called  upon  at  times  to  make  decisions  which 
practically  create  new  law.  In  England,  for  ex-  T 

,,,,.,,.,,.  ,  ,         Powers  and 

ample,  the  legislative  body  is,  as  we  have  empha-  functions  of 
sized,  the  supreme  law-making  body  of  the  state,  ^e  3U.di~ 
but  the  judicial  body  is  called  upon  in  many  cases  matters  af- 
to  interpret  and  apply  the  laws  enacted  by  that  *ecting  leg- 
supreme  body.    The  interpretations   and   applica- 
tions made  by  the  judiciary  establish  precedents  and  them- 
selves  become   part   of   the   fundamental  law  of  the  state. 
This  function    is    not    one    expressly    granted    by    the   con- 
stitution, but  one  which  is  a  practical  necessity  demanded 
by  varying  social  and  economic  conditions  in  all  states.     As 
in  England,  so  in  other  countries,  the  courts  have  gradually 
built  up  a  very  considerable  amount  of  what  is  known  as 
"judge-made"  law. 

In  this  connection  the  Supreme  Court  of  the  United  States 
has  exercised  very  notable  and  unusual  powers  ;  namely,  (1)  the 
power  to  set  aside  and  declare  to  be  without  force 
any  enactment  of  the  federal  legislative  body  which  power  of 
in  the  opinion  of  the  court  is  not  in  accord  with  the  Su~ 
the  constitution,  and  (2)  the  power  to  interpret  court  in 
authoritatively  the   language   of  the   constitution.  United 
These  powers  are  exercised  on  the  ground  that  the 
constitution  is  the  fundamental  law  of  the  state  and  that  the 


98      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

judicial  power  is  expressly  extended  by  the  terms  of  the 
constitution  "to  all  cases,  in  law  and  equity,  arising  under 
this  constitution,  the  laws  of  the  United  States,  etc."  (U.  S. 
Const.,  Art.  Ill,  Section  2).  The  right  of  the  Supreme  Court 
to  exercise  these  powers  has  been  acknowledged  since  early  in 
the  history  of  the  country. 

The  importance  of  these  powers  in  the  hands  of  the  judiciary 
upon  the  character  of  the  government  and  the  position  of  the 
importance  judiciary  is  beyond  estimation.  In  England,  Parlia- 
and  result  ment  is  supreme :  the  courts  may  declare  certain 
in  United  acts  unwarranted  under  the  existing  law,  but  Parlia- 
States.  ment  may  remedy  this  by  the  passage  of  a  new 
law  in  the  ordinary  processes  of  legislation.  In  Germany 
it  is  a  commonly  accepted  fact  that  the  promulgation  of  a 
law  by  the  Emperor,  after  that  law  has  passed  in  due  form 
the  legislative  body,  renders  it  in  force ;  the  safeguards  of  the 
constitution  are  thus  in  the  hands  of  the  Emperor  and  the 
legislature.  In  the  United  States,  however,  the  role  of  guardian 
of  the  constitution  has  been  intrusted  to  the  Supreme  Court : 
the  legislature  has  not  the  power  of  passing  on  the  legality  of 
its  own  acts,  as  it  has  in  England ;  nor  do  the  executive  head 
and  the  legislature  have  it  in  their  power  to  put  in  force  acts 
of  doubtful  constitutionality,  as  in  Germany.  The  Supreme 
Court  has  been  unsparing  in  its  use  of  these  powers,  having 
thus  defeated  over  twenty  acts  of  Congress.  The  Supreme 
Court,  as  a  result,  occupies  a  position  of  dignity  and  respect 
that  the  judiciary  occupies  in  no  other  country  in  the  world. 
It  is  the  steadying  influence  in  government,  the  ultimate  au- 
thority withstanding  any  attempts  by  the  legislative  body  to  use 
its  great  power  in  a  tyrannical  way,  the  body  whose  judgments 
are  most  respected  by  public  opinion  throughout  the  state. 

Of  the  procedure  in  the  courts  only  a  few  general  features 
can  be  given.  In  every  case  in  all  countries  there 

Judicial  pro-  _  ,    .      .-  , 

cedure :  the  must  be  an  accuser  or  plaintiff,  an  accused,  and  a 

parties  to       judge.     In  England  and  the  United  States,  and  to 

some  extent  in  other  countries,  the  judge  may  in 


THE   JUDICIARY  99 

cases  of  some  importance  be  assisted  by  a  jury.  The  accused 
is  permitted  to  be  represented  and  defended  by  a  lawyer  or 
advocate,  who  has  thus  become  in  all  civilized  states  to-day 
an  essential  element  in  civil  and  criminal  cases.  The  accuser 
or  plaintiff  may  be  an  individual  citizen,  also  represented  by  a 
lawyer  or  advocate,  or  may  be  (and  commonly  is  in  the  states 
of  continental  Europe)  an  official  of  a  government  department 
charged  with  this  duty. 

The  grade  or  degree  of  court  into  which  a  case  is  first  intro- 
duced is  determined  by  the  nature  and  importance  of  the  case. 
In  civil  cases  a  common  custom  is  to  give  original 
jurisdiction  to  the  lowest  grade  of  courts  in  cases  diction  of 
involving  an  amount  less  than  a  stipulated  value,  various 
as  two  hundred  dollars ;  and  to  give  original  juris- 
diction in  cases  involving  greater  value  to  a  higher  grade  of 
courts.  In  criminal  cases  a  similar  procedure  is  followed, 
petty  offenses  being  dealt  with  in  courts  of  the  lowest  grade 
and  crimes  of  a  serious  nature  in  courts  of  higher  grade.  Cases 
of  a  special  nature  not  coming  within  the  province  of  the  regular 
system  of  courts  are  dealt  with  in  special  courts.  In  some 
countries,  as  France  and  Germany,  where  doubt  exists  as  to 
which  courts  properly  have  jurisdiction,  as,  for  example,  whether 
the  regular  civil  courts  or  the  administrative  courts  should 
receive  a  case,  courts  of  conflict  have  been  established,  the 
function  of  which  is  to  refer  cases  to  the  proper  courts.  Com- 
monly, under  the  system  in  various  countries,  certain  specified 
cases  fall  in  the  jurisdiction  of  a  certain  grade  of  courts ;  thus, 
for  example,  in  Germany,  divorce  suits  are  brought  in  the 
Landgerichte  (court  of  second  grade),  and  in  the  United  States 
under  the  constitution  the  Supreme  Court  has  original  juris- 
diction "in  all  cases  affecting  ambassadors,  other  public  minis- 
ters and  consuls,  and  those  in  which  a  State  shall  be  a  party " 
(U.  S.  Const.,  Art.  Ill,  Section  2). 

A  feature  of  the  judicial  system  common  to  all  great  states 
is  the  right  of  appeal  from  the  decision  of  a  court  of  a  lower 
grade  to  that  of  a  court  of  a  higher  grade.  The  right  of 


100      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

appeal  may  be  exercised  in  both  civil  and  criminal  cases  and  in 
the  special  cases  in  the  special  courts.  The  ground  on  which 
The  right  of  an  appeal  is  based  is  usually  error  in  trial.  The 
appeal.  granting  of  an  appeal  is  in  some  cases  a  perfunctory 
matter,  being  insured  under  the  legal  system,  and  in  other 
cases  is  in  the  power  of  the  higher  court  itself ;  but  such  grant 
is  not  understood  in  any  case  to  prejudice  the  upper  court  in 
its  consideration  of  the  trial  by,  and  decision  of,  the  lower 
court.  The  action  of  the  upper  court  may  consist  either  in 
reaffirming  the  decision  of  the  lower  court,  or  reversing  the 
decision  of  the  lower  court  and  giving  a  decision  of  its  own, 
or  remanding  a  case  back  to  the  lower  court  for  retrial.  A 
case  of  importance  may  be  carried  from  the  lower  courts  to 
the  highest  court  in  the  state  by  successive  appeals.  So  com- 
monly is  the  right  of  appeal  taken  and  granted  that  it  has  been 
found  necessary  in  many  states  to  have  intermediate  courts 
which  deal  with  these  cases  alone,  such  as  the  circuit  court 
of  appeals  in  the  United  States,  the  court  of  criminal  appeals 
in  England,  and  the  court  of  petition  (chambre  des  requites)  in 
France. 

In  the  modern  state  the  infliction  of  penalties  and  punish- 
ments in  the  courts  is  upon  a  very  different  basis  from  that 
Penalties  °^  ^ormer  times.  For  criminal  offenses  the  punish- 
and  punish-  ments  in  former  times  were  usually  severe,  such  pun- 
ishments being  inflicted  on  the  theory  of  revenge 
or  retaliation,  or  on  the  theory  that  cruel  punishments  served 
to  frighten  prospective  criminals.  Thus  in  England  of  the  eigh- 
teenth century  there  were  approximately  two  hundred  and  fifty 
offenses  for  which  the  punishment  was  death,  and  as  late  as 
1830  a  nine-year-old  boy  was  sentenced  to  death  for  breaking 
a  shop  window  and  stealing  a  trifling  amount  of  paint.  The 
jails  and  prisons,  too,  were  kept  in  an  inhuman  way.  In 
modern  times  the  theory  of  the  aim  of  punishment  has  entirely 
changed.  Painstaking  investigation  of  the  causes  of  crime 
has  inspired  the  belief  that  on  the  one  hand  a  considerable 
proportion  of  crime  can  be  prevented,  and  that  on  the  other 


THE   JUDICIARY 


101 


many  criminals  can  be  converted  into  useful  members  of 
society.  Thus  prevention  of  crime  and  reformation  of  the 
criminal  have  become  the  ends  of  modern  justice.  In  view 
of  these  ends,  the  offenses  for  which  death  (capital  punishment) 
is  meted  out  have  been  reduced  in  numbers,  juvenile  courts 
have  been  established  to  deal  with  the  cases  of  children,  reform 
schools  have  taken  the  place  of  prisons  for  youthful  offenders, 
prisons  have  been  made  light,  clean,  and  airy,  criminals  have 
been  taught  useful  trades  during  their  term  of  imprisonment, 
and  numerous  social  agencies  outside  of  the  judicial  depart- 
ment cooperate  in  finding  honest  work  for  the  released  criminal. 


Chap.  VI.    Statistics  and  Illustrative  Citations 

THE   SUPREME    COURT    OF    THE    UNITED    STATES   AND   ITS 
POWER   OVER   LEGISLATION 

(a) 

Chief  Justice  Marshall's  famous  decision  in  the  Marbury 
v.  Madison  case,  1803,  contains  the  argument  upon  which 
rests  the  power  of  the  United  States  Supreme  Court  to  interpret 
the  constitution  and  to  declare  legislation  by  Congress  null 
and  void  when  such  legislation  is  not  in  accord  with  the  con- 
stitution. The  pertinent  part  of  the  decision  is  as  follows : 

The  question,  whether  an  act,  repugnant  to  the  constitution, 
can  become  the  law  of  the  land,  is  a  question  deeply  interest- 
ing to  the  United  States;  but,  happily,  not  of  an  intricacy 
proportioned  to  its  interest.  It  seems  only  necessary  to  recog- 
nize certain  principles,  supposed  to  have  been  long  and  well 
established,  to  decide  it.  That  the  people  have  an  original 
right  to  establish,  for  their  future  government,  such  principles 
as,  in  their  opinion,  shall  most  conduce  to  their  own  happiness, 
is  the  basis  on  which  the  whole  American  fabric  has  been  erected. 
The  exercise  of  this  original  right  is  a  very  great  exertion ;  nor 
can  it,  nor  ought  it,  to  be  frequently  repeated.  The  principles, 
therefore,  so  established,  are  deemed  fundamental:  and  as 
the  authority  from  which  they  proceed  is  supreme,  and  can 
seldom  act,  they  are  designed  to  be  permanent. 

This  original  and  supreme  will  organizes  the  government, 
and  assigns  to  different  departments  their  respective  powers. 
It  may  either  stop  here,  or  establish  certain  limits  not  to  be 
transcended  by  those  departments.  The  government  of  the 
United  States  is  of  the  latter  description.  The  powers  of  the 
legislature  are  defined  and  limited ;  and  that  those  limits  may 
not  be  mistaken  or  forgotten,  the  constitution  is  written.  To 
what  purpose  are  powers  limited,  and  to  what  purpose  is  that 
limitation  committed  to  writing,  if  these  limits  may,  at  any 
time,  be  passed  by  those  intended  to  be  restrained?  The  dis- 
tinction between  a  government  with  limited  and  unlimited 
powers  is  abolished,  if  those  limits  do  not  confine  the  persons 
on  whom  they  are  imposed,  and  if  acts  prohibited  and  acts 
allowed,  are  of  equal  obligation.  It  is  a  proposition  top  plain 
to  be  contested,  that  the  constitution  controls  any  legislative 

102 


THE   JUDICIARY  103 

act  repugnant  to  it ;  or  that  the  legislature  may  alter  the  con- 
stitution by  an  ordinary  act. 

Between  these  alternatives,  there  is  no  middle  ground. 
The  constitution  is  either  a  superior  paramount  law,  unchange- 
able by  ordinary  means,  or  it  is  on  a  level  with  ordinary  legis- 
lative acts,  and,  like  other  acts,  is  alterable  when  the  legisla- 
ture shall  please  to  alter  it.  If  the  former  part  of  the  alternative 
be  true,  then  a  legislative  act,  contrary  to  the  constitution,  is 
not  law :  if  the  latter  part  be  true,  then  written  constitutions 
are  absurd  attempts,  on  the  part  of  the  people,  to  limit  a  power, 
in  its  own  nature,  illimitable. 

Certainly,  all  those  who  have  framed  written  constitutions 
contemplate  them  as  forming  the  fundamental  and  paramount 
law  of  the  nation,  and  consequently,  the  theory  of  every  such 
government  must  be,  that  an  act  of  the  legislature,  repugnant 
to  the  constitution,  is  void.  This  theory  is  essentially  attached 
to  a  written  constitution,  and  is,  consequently,  to  be  consid- 
ered, by  this  court,  as  one  of  the  fundamental  principles  of  our 
society.  It  is  not,  therefore,  to  be  lost  sight  of,  in  the  further 
consideration  of  this  subject. 

If  an  act  of  the  legislature,  repugnant  to  the  constitution, 
is  void,  does  it,  notwithstanding  its  invalidity,  bind  the  courts, 
and  oblige  them  to  give  it  effect  ?  Or,  in  other  words,  though 
it  be  not  law,  does  it  constitute  a  rule  as  operative  as  if  it  was 
a  law  ?  This  would  be  to  overthrow,  in  fact,  what  was  estab- 
lished in  theory;  and  would  seem,  at  first  view,  an  absurdity 
too  gross  to  be  insisted  on.  It  shall,  however,  receive  a  more 
attentive  consideration. 

It  is,  emphatically,  the  province  and  duty  of  the  judicial 
department,  to  say  what  the  law  is.  Those  who  apply  the  rule 
to  particular  cases,  must  of  necessity  expound  and  interpret 
that  rule.  If  two  laws  conflict  with  each  other,  the  courts 
must  decide  on  the  operation  of  each.  So,  if  a  law  be  in  opposi- 
tion to  the  constitution ;  if  both  the  law  and  the  constitution 
apply  to  a  particular  case,  so  that  the  court  must  either  decide 
that  case,  conformable  to  the  law,  disregarding  the  constitu- 
tion; or  conformable  to  the  constitution,  disregarding  the 
law ;  the  court  must  determine  which  of  these  conflicting  rules 
governs  the  case :  this  is  of  the  very  essence  of  judicial  duty. 
If,  then,  the  courts  are  to  regard  the  constitution,  and  the  con- 
stitution is  superior  to  any  ordinary  act  of  the  legislature,  the 
constitution,  and  not  such  ordinary  act,  must  govern  the  case 
to  which  they  both  apply. 


104      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

Those,  then,  who  controvert  the  principle,  that  the  constitu- 
tion is  to  be  considered,  in  court,  as  a  paramount  law,  are  re- 
duced to  the  necessity  of  maintaining  that  courts  must  close 
their  eyes  on  the  constitution,  and  see  only  the  law.  This  doc- 
trine would  subvert  the  very  foundation  of  all  written  consti- 
tutions. It  would  declare  that  an  act  which,  according  to  the 
principles  and  theory  of  our  government,  is  entirely  void,  is 
yet,  in  practice,  completely  obligatory.  It  would  declare,  that 
if  the  legislature  shall  do  what  is  expressly  forbidden,  such 
act,  notwithstanding  the  express  prohibition,  is  in  reality 
effectual.  It  would  be  giving  to  the  legislature  a  practical 
and  real  omnipotence,  with  the  same  breath  which  professes 
to  restrict  their  powers  within  narrow  limits.  It  is  prescrib- 
ing limits,  and  declaring  that  those  limits  may  be  passed  at 
pleasure.  That  it  thus  reduces  to  nothing,  what  we  have 
deemed  the  greatest  improvement  on  political  institutions,  a 
written  constitution,  would,  of  itself,  be  sufficient,  in  America, 
where  written  constitutions  have  been  viewed  with  so  much 
reverence,  for  rejecting  the  constructions.  But  the  peculiar 
expressions  of  the  constitution  of  the  United  States  furnish 
additional  arguments  in  favor  of  its  rejection.  The  judicial 
power  of  the  United  States  is  extended  to  all  cases  arising  under 
the  constitution.  Could  it  be  the  intention  of  those  who  gave 
this  power,  to  say,  that  in  using  it,  the  constitution  should 
not  be  looked  into?  That  a  case  arising  under  the  constitu- 
tion should  be  decided,  without  examining  the  instrument 
under  which  it  arises?  This  is  too  extravagant  to  be  main- 
tained. In  some  cases,  then,  the  constitution  must  be  looked 
into  by  the  judges.  And  if  they  can  open  it  at  all,  what  part 
of  it  are  they  forbidden  to  read  or  to  obey  ? 

There  are  many  other  parts  of  the  constitution  which  serve 
to  illustrate  this  subject.  It  is  declared,  that  "no  tax  or  duty 
shall  be  laid  on  articles  exported  from  any  state."  Suppose, 
a  duty  on  the  export  of  cotton,  of  tobacco  or  of  flour;  and  a 
suit  instituted  to  recover  it.  Ought  judgment  to  be  rendered 
in  such  a  case?  Ought  the  judges  to  close  their  eyes  on  the 
constitution,  and  only  see  the  law  ? 

The  constitution  declares  "that  no  bill  of  attainder  or  ex 
post  facto  law  shall  be  passed."  If,  however,  such  a  bill  should 
be  passed,  and  a  person  should  be  prosecuted  under  it ;  must 
the  court  condemn  to  death  those  victims  whom  the  consti- 
tution endeavors  to  preserve  ? 

"No  person,"  says  the  constitution,  "shall  be  convicted  of 


THE  JUDICIARY  105 

treason,  unless  on  the  testimony  of  two  witnesses  to  the  same 
overt  act,  or  on  confession  in  open  court."  Here,  the  language 
of  the  constitution  is  addressed  especially  to  the  courts.  It 
prescribes,  directly  for  them,  a  rule  of  evidence  not  to  be 
departed  from.  If  the  legislature  should  change  that  rule,  and 
declare  one  witness,  or  a  confession  out  of  court,  sufficient  for 
conviction,  must  the  constitutional  principle  yield  to  the  legis- 
lative act  ? 

From  these,  and  many  other  selections  which  might  be  made, 
it  is  apparent,  that  the  framers  of  the  constitution  contemplated 
that  instrument  as  a  rule  for  the  government  of  courts,  as  well 
as  of  the  legislature.  Why  otherwise  does  it  direct  the  judges 
to  take  an  oath  to  support  it  ?  This  path  certainly  applies  in 
an  especial  manner,  to  their  conduct  in  their  official  character. 
How  immoral  to  impose  it  on  them,  if  they  were  to  be  used  as 
the  instruments,  and  the  knowing  instruments,  for  violating 
what  they  swear  to  support ! 

The  oath  of  office,  too,  imposed  by  the  legislature,  is  com- 
pletely demonstrative  of  the  legislative  opinion  on  this  subject. 
It  is  in  these  words :  "I  do  solemnly  swear,  that  I  will  adminis- 
ter justice,  without  respect  to  persons,  and  do  equal  right  to 
the  poor  and  to  the  rich ;  and  that  I  will  faithfully  and  impar- 
tially discharge  all  the  duties  incumbent  on  me  as  .  .  .,  accord- 
ing to  the  best  of  my  abilities  and  understanding,  agreeably 
to  the  constitution  and  laws  of  the  United  States."  Why  does 
a  judge  swear  to  discharge  his  duties  agreeably  to  the  constitu- 
tion of  the  United  States,  if  that  constitution  forms  no  rule  for 
his  government  ?  if  it  is  closed  upon  him,  and  cannot  be  in- 
spected by  him?  If  such  be  the  real  state  of  things,  this  is 
worse  than  solemn  mockery.  To  prescribe,  or  to  take  this 
oath,  becomes  equally  a  crime. 

It  is  also  not  entirely  unworthy  of  observation,  that  in  de- 
claring what  shall  be  the  supreme  law  of  the  land,  the  constitu- 
tion itself  is  first  mentioned ;  and  not  the  laws  of  the  United 
States,  generally,  but  those  only  which  shall  be  made  in  pursu- 
ance of  the  constitution,  have  that  rank. 

Thus,  the  particular  phraseology  of  the  constitution  of  the 
United  States  confirms  and  strengthens  the  principle,  supposed 
to  be  essential  to  all  written  constitutions,  that  a  law  repugnant 
to  the  constitution  is  void ;  and  that  courts,  as  well  as  other 
departments,  are  bound  by  that  instrument. 

(Cranch  1,  p.  137  ff.) 


106      AN  INTRODUCTION   TO  THE    STUDY  OF  GOVERNMENT 


(6) 

The  United  States  Supreme  Court  has  used  this  power 
annul  congressional  legislation  in  but  33  cases,  as  follows  : 


to 


NUMBEB 

OP  OPIN- 
IONS 

NUMBER 
OF  DIS- 
SENTING 
JUSTICES 

1 

1  Crancli  137. 

Marbury  v.  Madison   .     .     . 

1803 

9 

19  How.  393. 

Scott  v.  Sanford  

1856 

2 

1 

2  Wall.  561  ;   1 

17  U.  S.  697.  Gordon  y.U.  S. 

1864 

2 

4  Wall.  333. 

Ex  parte  Garland     .... 

1866 

4 

1 

6  Wall.  160. 

Reichart  v.  Felps     .... 

1867 

1 

7  Wall.  571. 

The  Alicia     

1868 

2 

8  Wall.  603. 

Hepburn  v.  Griswold  .     .     . 

1869 

3 

1 

9  Wall.  41. 

United  States  v.  DeWitt  .     . 

1869 

1 

9  Wall.  274. 

The  Justices  v.  Murray    .     . 

1869 

2 

11  Wall.  113. 

The  Collector  v.  Day  .     .     . 

1870 

1 

2 

13  Wall.  128. 

United  States  v.  Klein     . 

1871 

2 

3 

17  Wall.  322. 

United  States  v.  Railroad  Co. 

1873 

3 

3 

92  U.  S.  214. 

United  States  v.  Reese     .     . 

1875 

2 

1 

95  U.  S.  670. 

United  States  v.  Fox  .     .     . 

1877 

1 

100  U.  S.  82. 

Trade  Mark  Cases      .     .     . 

1879 

1 

106  U.  S.  629. 

United  States  v.  Harris    .     . 

1882 

2 

109  U.  S.  3. 

Civil  Rights  Cases      .     .     . 

1883 

1 

2 

116  U.  S.  616. 

Boyd  v.  United  States     .     . 

1885 

1 

127  U.  S.  540. 

Callan  v.  Wilson    .... 

1887 

1 

142  U.  S.  547. 

Counselman  v.  Hitchcock    . 

1891 

1 

1 

148  U.  S.  312. 

Navigation  Co.  v.  U.  S.  .     . 

1894 

3 

157  U.  S.  429. 

Pollock  y.  Farmers  Loan  Co. 

1894 

2 

5 

158  U.  S.  601. 

Pollock  v.  Farmers  Loan  Co. 

1894 

4 

2 

163  U.  S.  228. 

Wong  Wing  v.  United  States 

1895 

1 

174  U.  S.  47. 

Kirby  v.  United  States    .     . 

1899 

2 

2 

181  U.'S.  283. 

Fairbank  v.  United  States  . 

1901 

3 

1 

190  U.  S.  127. 

James  v.  Bowman  .... 

1903 

2 

3 

197  U.  S.  516. 

Rassmussen  v.  United  States 

1905 

5 

207  U.  S.  463. 

Employers  Liability  Cases  . 

1907 

4 

3 

208  U.  S.  161. 

Adair  v.  United  States    .     . 

1907 

2 

2 

213  U.  S.  138. 

Keller  v.  United  States   .     . 

1908 

3 

1 

213  U.  S.  297. 

United  States  v.  Evans   .     . 

1908 

1 

219  U.  S.  346. 

Muskrat  v.  United  States    . 

1910 

NOTE.  —  During  this  period  218  federal  statutes  in  all  have  been  contested  on 
constitutional  grounds,  of  which  the  Supreme  Court  has  upheld  185. 

(From  "  The  Supreme  Court  and  Unconstitutional  Legisla- 
tion," B.  F.  Moore,  Appendix  1.) 


THE   JUDICIARY 


107 


to 

To  illustrate  the  process  of  judicial  interpretation  of  the 
constitution  by  the  United  States  court,  the  following  table 
of  cases  interpreting  different  parts  of  a  single  sentence  is  pre- 
sented. This  table  includes  only  a  small  proportion  of  the 
total  number  of  cases  bearing  on  the  text  in  question. 

The  original  words  of  the  constitution  are  as  follows:  "The 
Congress  shall  have  power  .  .  . 

"To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes;" 

The  particular  part  which  is  subject  to  interpretation  in 
the  following  list  of  cases  is :  "The  Congress  shall  have  power 
to  regulate  commerce  among  the  several  States." 


Interstate  and  Foreign  Commerce. 
9  Wh.,  Gibbons  v.  Ogden, 


Subjects  of  Commerce. 

7  How.  283,  Passenger  Cases, 
10  How.  410,  Ducat  v.  Chicago, 
135  U.  S.  100,  Leisy  v.  Hardin, 

8  Wall.  168,  Paul  v.  Va., 

Things  become  Subjects  of  Commerce  when 
116  U.  S.  517,  Coe  v.  Errol, 


And  remain  Subjects  of  Commerce 
95  U.  S.  485,  Hall  v.  DeCuir, 

12  Wh.  419,  Brown  v.  Md., 

13  Wall.  29,  Low  v.  Austin, 


means  intercourse 
between  the  states 
and  with  foreign 
countries. 

passengers  are : 

passengers  are : 

all  commodities  or- 
dinarily exchanged  are : 

policies  of  insur- 
ance are  not : 

the  journey  to 
another  State  has 
actually  commenced. 

during  the  journey ; 

until  sale  by  the 
importer ; 

or  breaking  of  the 
original  package  in 
which  they  were  im- 
ported. 


The  Federal  Power  over  the  Subjects  of  Commerce  gives  Congress  the  right 

to 

12  Pet.  72,  U.  S.  v.  Coombs,  punish  any  interfer- 

ence, or  willful  in- 
jury to  goods  in 
transitu. 


108      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 


9  How.  560,  U.  S.  v.  Marigold, 


prohibit  the  impor- 
tation of  a  subject  of 
commerce. 


uuiiiiutjrue. 
112  U.  S.  580,  Hard-money  Cases,  tax  immigrants. 

The  Federal  Power  over  the  Means  of  Commercial  Intercourse,  derived 
from  the  Power  over  Commerce,  gives  Congress  the  right  to 


18  How.  421,  Pa.  v.  Wheeling  Brdg. 
10  Wall.  454,  The  Clinton  Brdg. ; 
109  U.  S.  385,  Miller  v.  Mayer; 
105  U.  S.  470,  Bridge  Co.  v.  U.  S., 

6  Wall.  646,  White's  Bank  v.  Smith ; 

7  Pet.  324,  Peyroux  v.  Howard, 
10  Wall.  557,  The  Daniel  Ball, 


102  U.  S.  541,  Lord  v.  Steamship  Co., 


96  U.  S.  1,  Pensacola  Tel.  Co.  v.  W.  U. 

Tel.  Co., 

127  U.  S.  1,  Cal.  v.  Cal.  Pac.  R.  R., 
196  U.  S.  369,  Wis.  v.  Duluth, 

135  U.  S.  641,  Cherokee  Nation 
v.  Southern  Kansas  Railroad  Co. 


establish  or  author- 
ize a  bridge  which 
obstructs  the  naviga- 
tion of  a  river  ;  or 
abate  such  a  structure. 

regulate  liens  on 
vessels. 

regulate  a  boat  carry- 
ing interstate  freight 
between  two  points  in 
the  same  state. 

regulate  the  liability 
of  the  owners  of  a  boat 
plying  the  high  seas  be- 
tween two  points  in  the 
same  state. 

establish  a  telegraph 
company. 

establish  a  railroad. 

improve  harbors, 
rivers,  etc. 

grant  to  a  corporation 
engaged  in  interstate 
commerce  the  right  of 
eminent  domain  through 
a  state. 

(From  "  The  Federal  Power  over  Commerce  and  its  Effect  on 
State  Action,"  W.  D.  Lewis,  p.  125  ff.) 


A  single  example  from  one  of  these  decisions  will  suffice  to 
illustrate  the  method  of  interpretation. 

Extract  from  decision,  1824,  written  by  Chief  Justice  Mar- 
shall in  the  case  of  Gibbons  v.  Ogden.  This  opinion  "is  the 
basis  of  all  subsequent  decisions  construing  the  commerce  clause, 
and  is  the  recognized  source  of  authority." 

The  words  are:  "Congress  shall  have  power  to  regulate 
commerce  with  foreign  nations,  and  among  the  several  states 


THE   JUDICIARY  109 

and  with  the  Indian  tribes."  The  subject  to  be  regulated  is 
commerce :  and  our  constitution  being,  as  was  aptly  said  at 
the  bar,  one  of  enumeration,  and  not  of  definition,  to  ascertain 
the  extent  of  the  power  it  becomes  necessary  to  settle  the 
meaning  of  the  word.  The  counsel  for  the  appellee  would 
limit  it  to  traffic,  to  buying  and  selling  or  the  interchange  of 
commodities,  and  do  not  admit  that  it  comprehends  naviga- 
tion. This  would  restrict  a  general  term,  applicable  to  many 
objects,  to  one  of  its  significations.  Commerce  undoubtedly 
is  traffic,  but  it  is  something  more ;  it  is  intercourse.  It  de- 
scribes the  commercial  intercourse  between  nations,  and  parts 
of  nations,  hi  all  its  branches,  and  is  regulated  by  prescribing 
rules  for  carrying  on  that  intercourse.  The  mind  can  scarcely 
conceive  a  system  for  regulating  commerce  between  nations, 
which  shall  exclude  all  laws  concerning  navigation,  which  shall 
be  silent  on  the  admission  of  the  vessels  of  the  one  nation  into 
the  ports  of  the  other,  and  be  confined  to  prescribing  rules  for 
the  conduct  of  individuals,  in  the  actual  employment  of  buying 
and  selling,  or  of  barter. 

If  commerce  does  not  include  navigation,  the  government 
of  the  Union  has  no  direct  power  over  that  subject,  and  can 
make  no  law  prescribing  what  shall  constitute  American  ves- 
sels, or  requiring  that  they  shall  be  navigated  by  American  sea- 
men. Yet  this  power  has  been  exercised  from  the  commence- 
ment of  the  government,  has  been  exercised  with  the  consent 
of  all,  and  has  been  understood  by  all  to  be  a  commercial  regu- 
lation. All  America  understands,  and  has  uniformly  under- 
stood, the  word  "commerce"  to  comprehend  navigation.  It 
was  so  understood,  and  must  have  been  so  understood,  when 
the  constitution  was  framed.  The  power  over  commerce, 
including  navigation,  was  one  of  the  primary  objects  for  which 
the  people  of  America  adopted  their  government  and  must 
have  been  contemplated  in  forming  it.  The  convention  must 
have  used  the  word  in  that  sense;  because  all  have  under- 
stood it  in  that  sense,  and  the  attempt  to  restrict  it  comes  too 
late.  .  .  . 

The  universally  acknowledged  power  of  the  government  to 
impose  embargoes,  must  also  be  considered  as  showing  that 
all  America  is  united  in  that  construction  which  comprehends 
navigation  in  the  word  "  commerce."  Gentlemen  have  said,  in 
argument,  that  this  is  a  branch  of  the  war-making  power,  and 
that  an  embargo  is  an  instrument  of  war,  not  a  regulation  of 
trade.  That  it  may  be,  and  often  is,  used  as  an  instrument  of 


110      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

war,  cannot  be  denied.  An  embargo  may  be  imposed  for  the 
purpose  of  facilitating  the  equipment  or  manning  of  a  fleet,  or 
for  the  purpose  of  concealing  the  progress  of  an  expedition  pre- 
paring to  sail  from  a  particular  port.  In  these,  and  in  similar 
cases,  it  is  a  military  instrument,  and  partakes  of  the  nature 
of  war.  But  all  embargoes  are  not  of  this  description.  They 
are  sometimes  resorted  to  without  a  view  to  war,  and  with  a 
single  view  to  commerce.  In  such  a  case,  an  embargo  is  no 
more  a  war  measure  than  a  merchantman  is  a  ship  of  war,  be- 
cause both  are  vessels  which  navigate  the  ocean  with  sails  and 
seamen.  When  Congress  imposed  that  embargo  which,  for  a 
time,  engaged  the  attention  of  every  man  in  the  United  States, 
the  avowed  object  of  the  law  was  the  protection  of  commerce, 
and  the  avoiding  of  war.  By  its  friends  and  its  enemies  it 
was  treated  as  a  commercial,  not  as  a  war  measure.  .  .  .  The 
word  used  in  the  constitution,  then,  comprehends,  and  has 
been  always  understood  to  comprehend,  navigation  within  its 
meaning;  and  a  power  to  regulate  navigation  is  as  expressly 
granted  as  if  that  term  had  been  added  to  the  word  "com- 
merce." 

To  what  commerce  does  this  power  extend?  The  constitu- 
tion informs  us,  to  commerce  "with  foreign  nations,  and  among 
the  several  states,  and  with  the  Indian  tribes."  It  has,  we 
believe,  been  universally  admitted  that  these  words  compre- 
hend every  species  of  commercial  intercourse  between  the  United 
States  and  foreign  nations.  No  sort  of  trade  can  be  carried 
on  between  this  country  and  any  other,  to  which  this  power 
does  not  extend.  It  has  been  truly  said,  that  commerce,  as 
the  word  is  used  in  the  constitution,  is  a  unit,  every  part  of 
which  is  indicated  by  the  term.  If  this  be  the  admitted  mean- 
ing of  the  word,  in  its  application  to  foreign  nations,  it  must 
carry  the  same  meaning  throughout  the  sentence,  and  remain 
a  unit,  unless  there  be  some  plain,  intelligible  cause  which 
alters  it. 

The  subject  to  which  the  power  is  next  applied,  is  to  commerce 
"among  the  several  states."  The  word  "among"  means 
intermingled  with.  A  thing  which  is  among  others  is  inter- 
mingled with  them.  Commerce  among  the  states  cannot 
stop  at  the  external  boundary  line  of  each  state,  but  may  be 
introduced  into  the  interior. 

It  is  not  intended  to  say  that  these  words  comprehend  that 
commerce  which  is  completely  internal,  which  is  carried  on 
between  man  and  man  in  a  state,  or  between  different  parts 


THE  JUDICIARY  111 

of  the  same  state,  and  which  does  not  extend  to  or  affect  other 
states.  Such  a  power  would  be  inconvenient  and  is  certainly 
unnecessary. 

Comprehensive  as  the  word  "among"  is,  it  may  very  properly 
be  restricted  to  that  commerce  which  concerns  more  states 
than  one.  The  phrase  is  not  one  which  would  probably  have 
been  selected  to  indicate  the  completely  interior  traffic  of  a 
state,  because  it  is  not  an  apt  phrase  for  that  purpose ;  and  the 
enumeration  of  the  particular  classes  of  commerce  to  which 
the  power  was  to  be  extended,  would  not  have  been  made  had 
the  intention  been  to  extend  the  power  to  every  description. 
.  .  .  The  genius  and  character  of  the  whole  government  seem 
to  be,  that  its  action  is  to  be  applied  to  all  the  external  concerns 
of  the  nation,  and  to  those  internal  concerns  which  affect  the 
states  generally ;  but  not  to  those  which  are  completely  within 
a  particular  state,  which  do  not  affect  other  states,  and  with 
which  it  is  not  necessary  to  interfere,  for  the  purpose  of  exe- 
cuting some  of  the  general  powers  of  the  government.  The 
completely  internal  commerce  of  a  state,  then,  may  be  con- 
sidered as  reserved  for  the  state  itself. 

But,  in  regulating  commerce  with  foreign  nations,  the  power 
of  Congress  does  not  stop  at  the  jurisdictional  lines  of  the 
several  states.  It  would  be  a  very  useless  power  if  it  could 
not  pass  those  lines.  The  commerce  of  the  United  States 
with  foreign  nations  is  that  of  the  whole  United  States.  Every 
district  has  a  right  to  participate  in  it.  The  deep  streams 
which  penetrate  our  country  in  every  direction,  pass  through 
the  interior  of  almost  every  state  in  the  Union,  and  furnish 
the  means  of  exercising  this  right.  If  Congress  has  the  power 
to  regulate  it,  that  power  must  be  exercised  wherever  the  sub- 
ject exists.  If  it  exists  within  the  states,  if  a  foreign  voyage 
may  commence  or  terminate  at  a  port  within  a  state,  then  the 
power  of  Congress  may  be  exercised  within  a  state. 

This  principle  is,  if  possible,  still  more  clear,  when  applied 
to  commerce  "among  the  several  states."  They  either  join 
each  other,  in  which  case  they  are  separated  by  a  mathematical 
line,  or  they  are  remote  from  each  other,  in  which  case  other 
states  lie  between  them.  What  is  commerce  "among"  them; 
and  how  is  it  to  be  conducted?  Can  a  trading  expedition 
between  two  adjoining  states  commence  and  terminate  out- 
side of  each?  And  if  the  trading  intercourse  be  between  two 
states  remote  from  each  other,  must  it  not  commence  in  one, 
terminate  in  the  other,  and  probably  pass  through  a  third? 


112      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

Commerce  among  the  states  must,  of  necessity,  be  commerce 
with  the  states.  In  the  regulation  of  trade  with  the  Indian 
tribes,  the  action  of  the  law,  especially  when  the  constitution 
was  made,  was  chiefly  within  ,a  state.  The  power  of  Congress 
then,  whatever  it  may  be,  must  be  exercised  within  the  terri- 
torial jurisdiction  of  the  several  states.  The  sense  of  the  nation, 
on  this  subject,  is  unequivocally  manifested  by  the  provisions 
made  in  the  laws  for  transporting  goods,  by  land,  between 
Baltimore  and  Providence,  between  New  York  and  Phila- 
delphia, and  between  Philadelphia  and  Baltimore. 

We  are  now  arrived  at  the  inquiry,  What  is  this  power?  It 
is  the  power  to  regulate ;  that  is,  to  prescribe  the  rule  by  which 
commerce  is  to  be  governed.  This  power,  like  all  others  vested 
in  Congress,  is  complete  in  itself,  may  be  exercised  to  its  utmost 
extent,  and  acknowledges  no  limitations,  other  than  are  pre- 
scribed in  the  constitution.  These  are  expressed  in  plain 
terms,  and  do  not  affect  the  questions  which  arise  in  this  case, 
or  which  have  been  discussed  at  the  bar.  If,  as  has  always 
been  understood,  the  sovereignty  of  Congress,  though  limited 
to  specified  objects,  is  plenary  as  to  those  objects,  the  power 
over  commerce  with  foreign  nations,  and  among  the  several 
States,  is  vested  in  Congress  as  absolutely  as  it  would  be  in  a 
single  government,  having  in  its  constitution  the  same  restric- 
tions on  the  exercise  of  the  power  as  are  found  in  the  constitu- 
tion of  the  United  States.  The  wisdom  and  the  discretion  of 
Congress,  their  identity  with  the  people,  and  the  influence 
which  their  constituents  possess  at  elections,  are,  in  this,  as 
in  many  other  instances,  as  that,  for  example,  of  declaring  war, 
the  sole  restraints  on  which  they  have  relied,  to  secure  them 
from  its  abuse.  They  are  the  restraints  on  which  the  people 
must  often  rely  solely,  in  all  representative  governments. 


CHAPTER  VII 
THE  ELECTORATE 

IN  preceding  chapters  we  have  had  occasion  a  number  of 
times  to  speak  of  "popular  government,"  "popular  election," 
"  election  by  the  people,"  etc. ;  indeed,  in  the  classi- 
fication  of  governments  we  made  the  distinction  of  the 
between  democratic  and  autocratic  governments  ^^^ 
on  the  basis  of  participation  or  non-participation  govern- 
in  the  government  by  the  people.  In  England  ment' 
and  the  United  States  especially  the  right  of  the  people  to 
exercise  they  suffrage  (i.e.  to  vote)  for  the  personnel  of  gov- 
ernment, and  thereby  to  hold  an  important  degree  of  control 
over  the  government,  is  the  very  foundation  of  the  liberalism 
and  free  institutions  which  have  existed  in  those  countries 
longer  than  in  most.  On  the  continent  the  French  Revolu- 
tion established  the  right  of  the  people  to  a  share  in  the  gov- 
ernment, and  now  such  a  right  is  universally  recognized  in 
the  states  of  western  Europe.  The  fundamental  principle  of 
democracy  is  involved  in  the  suffrage  of  the  people. 

Strictly  speaking,  however,  the  phrases  "popular  govern- 
ment" and  "election  by  the  people"  are  misleading,  for  the 
reason  that  in  no  state  do  all  the  people  possess 
the    suffrage.     The    principle    on    which    certain  people  are 
specified  persons  or  classes  of  persons  are  excluded  allowed  to 
from   the   suffrage   in   democratic   countries   is   in 
general  one  of  reason  and  common  sense.     For  example,  it  is 
absurd  to  suppose  that  an  infant  in  arms  is  capable  of  casting 
an  intelligent  vote;    it  is  equally  absurd  to  suppose  that  an 
imbecile  should  be  allowed  to  vote,  or  that  a  convicted  criminal 
should  have  a  share  in  government  by  the  use  of  the  ballot. 
i  113 


114      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

The  restrictions  upon  the  suffrage  are  intended  to  prevent 
the  exercise  of  this  right  by  all  persons  who  could  not  do  so 
with  judgment  and  propriety. 

The  body  of  persons  in  a  state  who  are  legally  qualified  to 
exercise  the  suffrage  is  known  as  the  electorate.  In  those 
Theelec-  states  where  the  suffrage  is  most  widely  extended 
torate:  pro-  to-day  the  ratio  of  the  electorate  to  the  entire 
ativeto*61'  Population  is  not  greater  than  one  to  five;  in  for- 
whoie  mer  times  in  states  which  considered  themselves 

people.  democratic,  as  in  England,  various  restrictions 
made  this  ratio  between  the  electorate  and  the  whole  people 
very  much  less,  in  some  cases  not  more  than  a  few  hundred 
thousand  possessing  the  suffrage  in  a  total  population  of 
several  millions.  We  live  to-day  in  an  era  of  liberalism  in 
which  the  tendency  is  to  extend  the  suffrage  as  widely  as 
reason  will  allow. 

I.   QUALIFICATIONS  OF  THE  ELECTORATE 

The  qualifications  required  for  the  exercise  of  the  suffrage 
are  differently  determined  in  the  different  states.  In  a  few 

o  alifica        °*  tne  great  states>   as  France   and  Germany,   a 
single  comprehensive  law  or  article  of  the  constitu- 


eiectorate  :     ftcm  embraces  the  whole  state.     In  England  a  series 

bv  wli8.t 

method  of  laws,  including  the  great  reform  acts  of  1832, 
legally  de-  1867,  and  1884,  has  extended  the  suffrage  without 
wholly  repealing  previous  statutes,  thus  rendering 
the  condition  theoretically  complex.  In  actual  fact,  how- 
ever, the  suffrage  is  to-day  very  liberally  extended  in  Eng- 
land. In  the  United  States,  under  the  constitution,  the 
electorate  must  have  "the  qualifications  requisite  for  elec- 
tors of  the  most  numerous  branch  of  the  State  legislature" 
(U.  S.  Const.,  Art.  I,  Section  2),  and  provision  is  made  in  the 
famous  fifteenth  amendment  that  "the  right  of  citizens  of  the 
United  States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race,  color,  or 
previous  condition  of  servitude."  In  this  country,  therefore, 


THE  ELECTORATE  .      115 

the  electorate  of  the  United  States  is  determined  by  the  quali- 
fications set  by  the  separate  commonwealths  each  for  itself, 
with  the  curious  result  that  certain  classes  of  persons  living 
in  one  commonwealth  are  privileged  to  vote  and  the  same 
classes  living  in  a  different  commonwealth  are  not  privileged 
to  vote.  In  our  discussion  of  the  electorate  as  constituted 
in  the  United  States  we  shall  have  to  refer  at  times  to  the 
conditions  in  the  separate  commonwealths. 

Among  the  limitations  upon  the  electorate  the  most  obvious 
is  that  of  age.     In  general,  states  require  the  attainment  of 
the  twenty-first  year  before  bestowing  the  right  to 
vote.     It  is  obvious,  of  course,  that  this  limit  is  an 
arbitrary  one  set  for  the  average  person ;    many  electorate : 
persons  are  mentally  qualified  to  vote  at  eighteen,  ^n]":mtA' 
many  others  of  slow  development  may  not  really 
be  qualified  at  thirty.     Common  sense  demands  that  there 
shall  be  some  limit  applicable  to  all  alike,  and  the  age  of  twenty- 
one  has  commonly  been  accepted  as  just. 

A  second  limitation  upon  the  suffrage  is  to  be  found  in  the 
requirement  that  a  person,  to  possess  that  right,  must  be  a 
citizen  of  the  state  in  which  he  proposes  to  vote. 
This  is  obviously  a  reasonable  requirement.     It  is  tionsof 
fundamentally  an  instinct  of  self-preservation  that  electorate:  { 
permits  only  those  who  acknowledge  allegiance  to 
the  state  to  have  a  share  in  its  government.     Persons  who  are 
aliens  could  not  be  expected  to  vote  with  a  thought  only  to 
the  welfare  of  a  state  in  which  they  happen  to  reside  but  to 
which  they  acknowledge  no  allegiance. 

In  modern  times,  however,  on  account  of  the  rapid  and  in- 
expensive means  of  transportation,  vast  numbers  of  people  are 
continually  migrating  from  one  state  to  another  for  the  pur- 
pose of  benefiting  themselves  materially,  so  that  the  great 
states  of  the  world  have  uniformly  introduced  methods  of  be- 
stowing citizenship  upon  newcomers  and  thus  admitting  them  to 
the  suffrage.  No  individual,  therefore,  with  a  real  intention  to 
remain  in  a  state  and  a  desire  to  participate  in  its  government, 


116      AN   INTRODUCTION   TO   THE   STUDY  OF   GOVERNMENT 

need  continue  to  be  alien,  provided  he  is  otherwise  qualified 
for  the  electorate. 

This  problem  of  the  bestowal  of  citizenship  has  been  especially 
pressing  in  the  relatively  new  countries,  as  the  United  States, 
Canada,  Australia,  and  the  South  American  states,  for  it  is  to 
these  countries  that  the  great  overflow  from  the  old  states 
has  gone.  In  some  cases  it  has  been  recognized  that  the  be- 
stowal of  citizenship  upon  all  races  and  peoples  indiscriminately 
would  be  bad  policy,  would  be  indeed  suicidal.  Thus  in  the 
United  States  it  is  recognized  that  persons  of  the  Mongolian 
race  cannot  mix  with,  and  be  assimilated  by,  the  dominant 
Caucasian  race  in  the  country ;  therefore  the  law  provides  that 
no  alien  Mongolian  can  be  admitted  to  citizenship.  Realizing 
further  the  economic  dangers  in  an  influx  of  a  horde  of  Chinese 
coolies  whose  standards  of  wages  and  living  are  far  below 
those  of  the  native  citizens  of  this  country,  the  United  States 
has  even  gone  so  far  as  to  prevent  such  persons  from  entering 
the  country  at  all. 

In  this  same  connection  the  action  of  many  of  the  southern 
commonwealths  of  the  United  States  in  making  such  require- 
ments for  the  electorate  as  will  include  the  whites  and  exclude 
the  negroes,  yet  not  contravene  the  fifteenth  amendment,  is 
notable.  The  negro  problem  is  one  peculiar  to  our  country, 
and  in  our  country  is  restricted  to  one  section,  the  South. 
In  many  districts  of  the  South  the  negroes  outnumber  the 
whites,  so  that  a  free  and  unrestricted  suffrage  would  throw 
the  control  of  the  local  government  entirely  into  the  hands  of 
negroes.  Such  an  event  being  repugnant  and  impossible  to  the 
whites,  various  special  property,  educational,  and  ancestry- 
requirements  exist,  enforcement  of  which  has  resulted  in  the 
virtual  disfranchisement  of  the  negro  in  the  South.  Such  pro- 
cedure is  justified  by  the  unique  conditions  in  that  section  and 
the  necessity  of  the  dominant  white  minority  to  take  measures 
for  its  self-preservation.  As  a  general  principle,  measures 
by  which  a  minority  seeks  to  perpetuate  its  control  over  the 
government  cannot,  of  course,  be  too  strongly  condemned. 


THE   ELECTORATE  117 

Closely  coupled  with  the  requirement  of  citizenship  for  the 
enjoyment  of  the  suffrage  is  some  form  of  identification  re- 
quirement. Commonly  this  consists  in  qualification  identffica- 
by  actual  residence  in  a  district  or  subdistrict  for  a  tion- 
specified  time  before  voting,  and  by  the  registration  of  the 
person's  name  in  the  list  of  voters  of  that  district.  This  re- 
quirement is  also  obviously  reasonable.  So  long  as  exclusions 
from  the  electorate  are  necessary,  some  simple  method  must  be 
devised  to  insure  that  no  persons  legally  excluded  shall  vote. 
The  requirements  of  residence  and  registration  are  the  simplest 
method  possible.  The  length  of  residence  varies  much  in  dif- 
ferent states.  In  some  of  the  commonwealths  of  the  United 
States  it  is  only  one  month,  in  one  commonwealth  it  is  two 
years,  the  long  period  being  defended  by  the  argument  that 
only  by  such  residence  can  the  citizen  become  sufficiently  fa- 
miliar with  local  conditions  to  exercise  the  suffrage  with  good 
judgment.  ^ 

So  far  as  mental  and  moral  requirements  are  concerned  a 
citizen  is  qualified  in  most  states  who  can  read  and  write,  is 
not  a  lunatic,  has  never  been  convicted  of  any  one  of  Mentaj  ^^ 
certain  classes  of  high  crimes,  and  is  not  in  jail  or  moral  re- 
prison  at  the  time  of  an  election.  The  mere  recita-  i^6111611*8- 
tion  of  the  above  conditions  shows  how  far  the  modern  demo- 
cratic movement  has  proceeded. 

One  of  the  most  important  restrictions  laid  upon  the  elec- 
torate, and  one  much  under  discussion  at  the  present  day, 
is  the  sex  restriction.  In  most  great  states  the  sexrestric- 
exercise  of  the  suffrage  is  restricted  to  men.  The  tions- 
reasons  for  this  restriction  are  historical  and  traditional.  In 
primitive  society  political  power  was  coincident  with  military 
power,  and  was  wholly  in  the  hands  of  men.  Early  in  authentic 
history  we  find  women  in  a  subordinate  and  dependent  position 
relative  to  men,  having  no  legal,  economic,  or  civil  rights.  In 
an  era  when  nations  lived  by  warfare,  the  women,  who  were 
not  subject  to  military  service,  sank  into  insignificance  as  a 
political  element  in  society.  With  the  approach  of  the  modern 


118      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

age,  however,  as  ushered  in  by  the  French  Revolution,  the 
legal,  economic,  and  civil  disabilities  which  had  been  imposed 
upon  women  were  gradually  removed,  so  that  women  now 
may  in  most  states  enter  into  contracts,  carry  on  business, 
engage  in  a  profession,  and  in  general  compete  on  an  equality 
under  the  law  with  men  in  various  economic  pursuits.  Women 
have  taken  advantage  of  their  new  freedom  with  eagerness 
and  intelligence.  The  women  workers  in  modern  states  are 
an  asset  of  ever  increasing  importance  to  the  prosperity  of 
the  country.  With  their  economic  and  legal  equality  has 
come  the  demand  for  political  equality,  for  admission  to  the 
electorate. 

The  arguments  for  woman  suffrage  are  strong  and  have  been 
forcibly  presented  by  a  number  of  able  thinkers  in  modern 
times.  The  growth  of  modern  democracy  is  responsible  for 
the  development  of  the  idea  of  "one  citizen,  one  vote."  Thus 
women  have  been  led  to  claim  the  ballot  because  they  are 
citizens  equally  with  men.  Again,  the  property  of  women  is 
taxed  without  regard  to  sex;  whereupon  the  cry  of  "taxation 
without  representation"  is  raised.  The  injustice  of  man-made 
government  deciding  the  laws  for  women  is  strongly  emphasized ; 
the  women  assert  that  their  rights  would  be  better  protected 
had  they  a  right  to  participate  in  the  government.  The  use  of 
sex  as  one  of  the  restrictions  upon  the  electorate  puts  the  women 
in  the  same  class  with  idiots  and  criminals,  the  women  argue, 
an  unnatural  grouping  which  is  abhorrent  to  enlightened  hu- 
manity. The  women  point  to  prominent  members  of  their 
sex  who  in  the  position  of  rulers  have  performed  distinguished 
political  services,  as  a  proof  that  women  have  political 
capacity. 

On  the  other  hand,  the  opponents  of  woman  suffrage  have 
their  best  arguments  in  the  fundamental  difference  between 
the  sexes.  They  assert  that  to  woman  is  given  the  function  of 
bearing  and  rearing  children,  of  creating  and  maintaining  the 
home.  They  argue  that  the  suffrage  would  tend  to  destroy 
the  purely  feminine  quality  of  the  average  woman,  would 


THE  ELECTORATE  119 

distract  her  interest  and  attention  from  the  great  function 
intrusted  to  her  by  nature,  and  would  introduce  discord  into 
the  home. 

In  considering  this  question  it  must  be  understood  that  uni- 
versal suffrage  prefaces  a  great  revolution  in  political  conditions 
in  a  state.  Universal  suffrage  would  in  nearly  all  countries 
more  than  double  the  number  of  voters.  The  part  that  would 
be  added  to  the  present  electorate  would  undoubtedly  have 
much  the  same  elements  of  bad  and  good,  of  ignorant  and 
educated,  as  the  present  electorate  has.  The  chances  of  ill- 
advised  clamor  would  be  as  great  as  at  present,  with  the  added 
misfortune  of  seeming  more  unanimous.  The  election  of  un- 
suitable officials  would  not  cease  were  women  to  vote :  their 
faculties  for  discerning  the  politically  good  and  bad  are  no  finer 
than  those  of  men.  The  production  of  hasty  and  injurious 
legislation  would  not  wholly  cease,  for  the  political  acumen  of 
women  is  n6  greater  than,  and,  at  present  at  least,  not  so  well 
trained  as,  that  of  men.  The  advantage  to  the  state,  there- 
fore, is  dubious :  an  enormous  addition  to  the  electorate  is 
provided,  with  no  corresponding  benefit  assured. 

The  theoretical  arguments  for  the  right  of  women  to  vote 
have  such  weight  that  equal  suffrage  has  been  granted  in  various 
communities.  New  Zealand  and  Finland  are  two  countries  in 
which  women  hold  the  suffrage.  The  experiment  in  those 
countries  is  not  on  a  sufficiently  large  scale  and  has  not  been 
tried  long  enough  to  draw  decisive  conclusions  on  its  operation. 
In  England  the  agitation  for  woman  suffrage  is  disturbing  the 
entire  country.  Certain  women  who  believe  the  suffrage  is 
only  to  be  gained  by  force  (the  "militants")  have  undertaken 
a  campaign  of  terrorism  which  has  tended  in  many  quarters  to 
alienate  popular  sympathy  from  the  cause.  A  number  of  the 
commonwealths  of  the  United  States  now  grant  the  suffrage 
to  women,  but  here  also  the  test  has  been  so  short  that  decided 
opinions  are  not  justified.  All  that  can  be  said  at  present  is 
that  the  cause  seems  to  be  gaining  steadily  in  democratic 
states  throughout  the  world. 


120      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

A  restriction  upon  the  electorate  which  exists  in  some  states 
and  is  justified  by  certain  reasonable  arguments  is  that  the  right 
Property  to  vote  shall  be  a  privilege  only  of  those  who  possess 
restrictions,  property  of,  or  more  than,  a  stipulated  value.  The 
fundamental  argument  advanced  to  support  this  restriction  is 
that  only  the  man  of  property  has  a  real  interest  in  the  state. 
If  the  state  prosper,  his  property  and  his  rights  to  it  are  pro- 
tected ;  if  the  state  do  not  prosper,  his  property  and  his  rights 
to  it  are  endangered.  The  possession  of  property,  too,  is 
thought  to  imply  something  more  than  average  ability  in  its 
possessor :  thus  such  a  restriction  will  on  the  whole  operate  to 
keep  the  suffrage  in  the  hands  of  the  intellectually  worthy. 
It  is  only  the  man  of  property,  according  to  this  argument,  who 
is  entitled  to  participate  in  the  government.  He  will  have  a 
better  judgment  than  the  average  man  and  will  be  inspired  by 
self-interest  to  advocate  wise  measures  and  to  cast  his  vote  for 
the  best  men.  The  man  without  property  has  nothing  at  stake, 
nothing  to  lose ;  presumably  he  has  less  judgment  and  less  inter- 
est in  the  welfare  of  the  state. 

Most  democratic  states  at  the  present  day  have  discarded  this 
restriction.  In  the  first  place,  such  a  restriction  places  the 
government  in  the  hands  of  the  moneyed  classes.  There  exists 
always  under  such  circumstances  a  suspicion  that  legislation  is 
class  legislation,  legislation  not  for  the  good  of  the  whole  state 
but  rather  for  the  material  advantage  of  the  propertied  classes. 
Furthermore  it  is  justly  argued  that  a  large  class  of  persons  may 
by  education  be  unusually  well  qualified  to  exercise  the  suffrage 
but  may  never  be  able  to  meet  the  property  qualification. 
Again,  it  is  emphatically  denied  that  the  propertyless  have  no 
interest  or  stake  in  the  welfare  of  the  state.  The  propertyless 
class  is  composed  mainly  of  artisans,  laborers,  farmers  on  a  small 
scale,  and  the  like.  The  stake  of  the  propertyless  class  is  their 
very  lives.  In  a  prosperous  state  there  is  work  in  abundance 
and  the  laboring  man  is  in  demand  at  good  wages :  in  a  mis- 
governed and  unprosperous  state  the  mills  and  factories  shut 
down,  money  is  hoarded,  and  the  laborer  suffers.  It  is  to  the 


THE   ELECTORATE  121 

laborer's  highest  interest  that  the  state  be  well  governed  and 
prosperous.  From  the  other  side,  too,  the  laborer  has  an  inter- 
est in  the  state,  for  it  is  by  his  labor  and  production  that  under 
favorable  conditions  the  prosperity  of  the  state  is  maintained 
and  increased. 

The  most  conspicuous  example  of  this  property  qualification 
for  the  suffrage  is  to  be  found  in  Prussia  (considered  as  distinct 
from  the  German  Empire).  There  the  electors  are  divided  into 
three  classes  according  to  the  amount  of  taxes  they  pay,  each 
class  having  equal  representation  in  the  electoral  college  which 
chooses  the  members  of  the  lower  legislative  house.  The  result 
of  this  arrangement  is  that  a  comparatively  few  large  tax- 
payers in  a  district  have  as  much  power  as  the  great  mass  of  the 
people.  Intense  ill-feeling  has  been  produced  among  the  people 
by  this  system,  and  the  demand  for  reform  is  yearly  growing 
more  insistent. 

The  above  are  the  chief  restrictions  placed  upon  the  elec- 
torate in  modern  democratic  states.  It  will  be 

-  Breadth  of 

seen  that  in  general  all  male  citizens  of  mature  age  electorate 
and  average  intelligence  and  morality  are  given  the  Unde5  ^ese 

.  i  ft  restrictions. 

vote.     The  consideration  of  no  other  phase  of  modern 

political  conditions  will  so  astonishingly  reveal  the  difference 

between  the  present  era  and  the  past. 

II.   FUNCTION  OP  THE  ELECTORATE 

The  function  of  the  electorate  is  to  vote.     Strangely  enough, 
this  function,  which  was  so  desired  by  men  of  past  ages,  is  now 
not  exercised  by  a  very  large  proportion  of  those  Function  of 
qualified.     One    of    the    problems    of   the    modern  the  eiecto- 
state  is  to  contrive  means  to  induce  the  whole  elec- 
torate to  cast  its  vote.     In  an  election  of  unusual  interest,  at 
times  as  much  as  seventy-five  per  cent  of  the  qualified  electors 
vote ;  in  local  elections  which  are  considered  of  little  importance, 
the  percentage  runs  far  below  this. 

A  curious  experiment  has  been  suggested,  and  tried  on  a  small 


122      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

scale,  in  this  connection.  Belgium  and  Spain  have  introduced 
a  system  of  compulsory  suffrage,  by  which  each  qualified 
Compulsory  voter,  if  without  reasonable  excuse,  is  required  to 
voting.  cast  his  ballot.  Failure  to  comply  with  this  require- 
ment is  punishable  by  fine,  increase  of  taxes,  or  loss  of  political 
rights.  It  cannot  be  said  that  compulsory  suffrage  has  appealed 
widely  to  political  thinkers.  The  right  to  vote,  to  participate 
in  one's  government,  is  a  privilege  rather  than  a  duty,  and  the 
voluntary  exercise  of  this  right  is  certain  to  be  more  conscien- 
tious on  the  part  of  the  individual  and  more  valuable  to  the  state 
than  its  compulsory  exercise.  The  voter  who  casts  his  vote 
under  fear  of  punishment  is  of  little  value  to  the  state  :  what  is 
most  desirable  is  the  intelligent  voter  who  after  careful  delibera- 
tion casts  an  intelligent  ballot  for  men  or  measures  which  seem 
to  him  wise. 

Reason  suggests  to  all  men  that  the  function  of  voting  is 
sure  to  be  more  judiciously  exercised  by  some  persons  than  by 
Weighted  others :  a  few  states  have  attempted  on  this  ground 
voting.  to  make  a  distinction  in  the  weight  of  the  votes 
cast  by  persons  of  different  classes.  By  assigning  a  weight  of 
two  or  even  three  to  the  vote  of  an  educated  person  or  a  person 
with  large  property  interests,  —  that  is,  in  practice  allowing 
such  persons  two  or  three  votes  to  the  single  vote  of  the  ordinary 
man,  —  it  is  believed  this  better-qualified  class  of  the  electorate 
can  balance  the  unwieldy  mass  of  the  uneducated  and  unwise. 

The  system  has  been  put  in  practice  in  Belgium  under  the 
following  conditions :  one  vote  is  allowed  to  each  citizen  duly 
qualified ;  one  additional  vote  is  allowed  to  each  citizen  owning 
land  to  the  value  of  two  thousand  francs  or  more,  and  to  each 
citizen  thirty-five  years  old,  with  legitimate  offspring,  and  pay- 
ing a  direct  tax  of  five  francs  or  more;  two  additional  votes 
are  allowed  to  citizens  who  have  completed  certain  courses  of 
education,  and  to  citizens  whose  position  or  profession  is  or  has 
been  such  as  to  warrant  the  belief  that  they  have  a  good  educa- 
tion. The  maximum  number  of  votes  allowed  any  one  indi- 
vidual is  three. 


THE   ELECTORATE  123 

In  spite  of  the  theoretical  justness  of  this  system,  in  practice 
it  has  met  with  strong  opposition.  Introduced  into  Belgium 
in  1893,  it  seems  likely  to  be  discarded  within  the  next  few 
years  owing  to  the  clamor  of  the  mass  of  persons  who  have  only  a 
single  vote.  The  chief  objection  offered  is  similar  to  one  urged 
against  the  property  qualification  for  the  suffrage ;  namely,  that 
this  system  in  effect  establishes  a  rule  of  the  moneyed  minority 
without  respect  to  the  wishes  of  the  moneyless  majority. 
Reasonable  objection  cannot  be  offered  against  the  increased 
weight  given  to  educational  qualifications,  but  the  possession 
of  property  is  not  always  the  result  of  superior  intelligence,  and, 
it  is  argued,  should  not  be  considered  as  a  special  qualification 
for  the  suffrage.  Belgium  may  soon  give  up  its  system  and  fall 
in  line  with  the  other  states  in  giving  to  each  qualified  citizen  a 
single  vote. 

III.  APPOINTIVE  POWERS  OP  THE  ELECTORATE 

The  powers  of  the  electorate  are  mainly  appointive  in  the 
democratic  states  of  the  world.    The  degree  of   democracy 
which  a  state  has  reached  is  measured  largely  by  the 
number  and  importance  of  the  offices  which  the  the  eiecto- 
electorate  controls.     In  the  legislative  department,  rate:  ap- 
the  electorate  controls  the  appointment  of  members 
of  the  lower  chambers  in  all  modern  democratic  states.     In 
many  states,  as  in  France  and  the  United  States,  the  electorate 
controls  also  the  appointment  of  members  of  the  upper  cham- 
ber.    In  the  executive  department,  the  electorate  in  democratic 
states  commonly  controls  the  appointment  of  the  chief  execu- 
tive, except  in  certain  states  where  the  office  is  hereditary,  as 
England,  Italy,  Germany,  etc.     In  many  cases  this  control  is 
exercised  by  an  intermediate  body,  as  in  France  and  the  United 
States,  but  the  essential  fact  remains  true  that  the  ultimate 
control  is  in  the  hands  of  the  electorate.     In  England  the  elec- 
torate controls  the  ministry,  though  it  does  not  actually  appoint 
the  personnel  of  the  ministry.    In  the  judicial  department, 


124      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

experience  has,  as  has  been  explained,  tended  to  take  the  control 
of  appointments  away  from  the  electorate. 

Because  of  the  importance  of  the  legislative  department, 
the  control  which  the  electorate  exercises  over  it  is  the  most 
vital  element  in  a  democracy.  However  important 
a  PersonaSe  the  chief  executive  may  be,  his  functions 
rate's  ap-  are  to  a  large  extent  determined  by  the  legislative 
body.  He  is  unable  to  obtain  funds  for  the  exercise 
of  his  authority  without  legislative  sanction,  he  can- 
not promulgate  laws  for  the  state  until  these  laws  have  been 
passed  by  the  legislative  body,  he  cannot  carry  on  war  without 
the  aid  of  the  legislative  body.  In  short,  the  legislature  is  the 
heart  of  the  whole  structure  of  the  government.  It  behooves 
us,  therefore,  to  understand  thoroughly  the  powers  of  the 
electorate  as  they  are  exercised  in  the  control  of  appointments 
to  the  legislative  body. 

The  general  method  of  appointment  can  be  very  briefly  and 
explicitly  stated.  The  territory  of  a  state  is  divided  into  a 
number  of  districts,  and  the  electorate  in  each  dis- 
tr^ct  aPPomts  a  representative  to  the  national  legis- 
appoint-  lative  body.  The  boundaries  of  the  districts  may  be 
(ejection)  determined  on  a  basis  of  population,  as  is  commonly 
the  case  in  districts  whose  electorate  appoints  mem- 
bers of  the  lower  house,  or  on  a  basis  of  administrative  conven- 
ience (as  in  the  case  of  the  French  departements) ,  or  historical 
unity  (as  in  the  case  of  the  various  commonwealths  in  the  United 
States).  Where  the  electorate  controls  directly  or  indirectly 
the  appointment  of  members  of  the  upper  house,  such  members 
are  commonly  appointed  from  much  larger  districts  than  are 
the  members  of  the  lower  house.  Thus  in  the  United  States 
the  number  of  members  of  the  lower  house  is  proportionate  to 
population,  but  the  number  of  members  of  the  upper  house  is 
dependent  upon  the  number  of  commonwealths  in  the  Union. 
In  France  the  members  of  the  lower  house  (Chamber  of 
Deputies)  represent  small  districts  (arrondissements) ,  the 
members  of  the  upper  (Senate)  represent  departments  (departe- 


THE   ELECTORATE  125 

ments).  In  Germany  the  members  of  [the  lower  house 
(Reichstag)  are  appointed  in  single  electoral  districts,  which 
were  originally  (1869)  apportioned  one  per  one  hundred  thou- 
sand inhabitants,  but  which  now  are  very  unequal  in  population. 
The  appointee  or  representative  elected  is  commonly  he 
who  obtains  the  greatest  number  of  votes  from  the 

.     ,  -r,  ,  .     .,         r     „  Method  of 

electorate.  Rarely  is  a  clear  majority  of  all  votes  appoint- 
east  required ;  a  plurality  is  commonly  sufficient  to  ment. or 
elect  under  the  laws  in  various  democratic  states. 

Strong  arguments  have  been  advanced  to  prove  the  injustice 
of  the  above  method  of  election.  These  arguments  are  all 
based  on  the  fact  that  election  by  plurality  of  votes  objections 
deprives  a  large  proportion  of  the  electors  of  any  to  method, 
representation  at  all.  Thus  in  a  hypothetical  district  contain- 
ing 10,000  electors,  5001  electors  can,  under  this  system,  elect  a 
representative  and  leave  4999  entirely  unrepresented.  On  a 
larger  scale,  it  is  conceivable  that  an  actual  minority  party  of 
the  electorate  may  control  the  government  by  carrying  a  major- 
ity of  the  districts  by  a  small  margin  and  losing  the  remainder 
by  a  large  number  of  votes.  Thus,  supposing  there  were  500 
districts  in  all,  one  party  might  conceivably  carry  260  with  a 
total  vote  of  1,000,000  votes  to  750,000,  and  lose  240  districts 
by  a  total  vote  of  250,000  to  1,500,000.  The  party  which 
carried  260  districts  would  then  control  the  government  with  a 
national  poll  of  1,250,000  votes,  and  the  other  party  would  be  in 
the  minority,  although  throughout  the  nation  it  had  polled 
2,250,000  votes. 

Although  the  injustice  of  this  method  of  the  distribution  of 
the  powers  of  the  electorate  in  electing  representatives  is  ac- 
knowledged by  political  thinkers,  none  of  the  va-  Proposed 
rious  schemes  which  have  been  devised  to  correct  substitutes 
it  has  met  with  general  approval.     These  schemes  method?11 
may  be  divided  into  two  general  classes ;  the  first  proportional 
class  being  composed  of  those  schemes  which  aim  to  hyrepresen- 
give  each  party  or  group  of  the  electorate  representa-  tati°n- 
tion  hi  proportion  to  its  voting  strength,  the  second  class  being 


126      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

composed  of  those  schemes  which  aim  to  give  some  representa- 
tion to  minorities  although  not  necessarily  a  representation 
proportionate  to  voting  strength.  The  first  of  these  classes 
is  commonly  known  as  proportional  representation,  the  second 
as  minority  representation. 

It  may  be  said  in  advance  of  discussion  that  any  scheme  for 
proportional  or  minority  representation  requires  the  election  of 
Under  pro-  more  than  one  representative  from  each  district, 
portionai  or  Since  the  number  of  members  in  the  legislative  bodies 
repre"enta-  *s  now  as  larSe  as  can  well  carry  on  business,  such  a 
tion  change  in  the  general  system  would  probably  best 

districts''  ^e  accomplished  by  lessening  the  present  number  of 
must  not  be  districts  and  extending  the  limits  of  each  district. 

It  must  be  acknowledged,  however,  that  this 
change  would  destroy  one  of  the  great  advantages  of  the  small- 
district  system,  in  that  the  individual  voters  in  the  large  district 
would  in  many  cases  be  ignorant  of  the  character  of  the  candi- 
dates nominated,  whereas  in  the  small  district  such  ignorance 
is  unlikely. 

One  of  the  schemes  advanced  to  insure  proportional  repre- 
sentation is  commonly  known  as  the  list  or  the  free  list 

system.  By  this  system  each  political  group  in  the 
tionaTrepre-  elec^orate  may  nominate  as  many  candidates  as 
sentation :  there  are  representatives  to  be  elected.  Each  voter 
the^hst  sys-  may  cagj.  ag  manv  votes  as  there  are  candidates  to  be 

elected,  but  is  required  to  distribute  his  votes  among 
the  various  candidates.  Each  vote  cast  is  counted  both  for 
the  individual  candidate  and  for  the  political  group  by  which 
he  was  nominated.  Representation  is  then  given  to  each  polit- 
ical group  in  proportion  to  the  number  of  votes  given  to  its 
candidates.  The  individuals  within  the  parties  who  are  de- 
clared elected  are  determined  by  the  total  personal  vote  each 
has  received. 

To  illustrate  the  operation  of  this  system  in  its  simplest  form, 
assume  a  district  with  an  electorate  of  10,000  and  six  repre- 
sentatives to  choose.  Three  political  groups,  the  Red,  the 


THE   ELECTORATE 


127 


Blue,  and  the  Green,  each  nominate  six  candidates.  Each 
voter  casts  six  votes,  distributing  them  among  the  various 
candidates,  thus  making  a  grand  total  of  60,000  votes  cast  in 
the  district.  When  the  count  is  made,  it  is  found  that  the  six 
candidates  of  the  Blue  party  have  collectively  polled  30,000 
votes,  those  of  the  Red  party  20,000,  those  of  the  Green  party 
10,000.  It  is  obvious  with  such  results  that  Blue  would  elect 
three  representatives,  Red  two,  and  Green  one.  The  election 
returns  might  appear  as  follows  : 


BLUE 

;RED 

GKEEN 

Mr.  A     6,000 
Mr.  B     5,850 
Mr.  C     5,000 
Mr.  D     4,600 
Mr.  E     4,350 
Mr.  F  J  4,200 

Mr.  H    3,800 
Mr.  K    3,700 
Mr.  M    3,650 
Mr.  N     3,400 
Mr.  Q     2,800 
Mr.  R     2,650 

Mr.  T     2,400 
Mr.  V     2,200 
Mr.  W    1,400 
Mr.  X     1,350 
Mr.  Y     1,350 
Mr.  Z      1,300 

30,000 
Elected 

Mr.  A 
Mr.  B 
Mr.  C 

20,000 
Elected 

Mr.  H 
Mr.  K 

10,000 
Elected 

Mr.  T 

The  above  system  was  used  in  Cuba  in  1908  to  elect  repre- 
sentatives to  the  national  legislative  body  and  is  now  used  for 
various  elections  in  Norway,  Sweden,  and  most  of  the 
cantons  of  Switzerland.  Its  many  advantages  have 
led  to  a  consideration  of  its  adoption  in  France,  Eng- 
land, and  Holland.  Forms  of  this  system,  although  differing  in 
details  from  it,  as  described  above,  have  been  introduced  in 
Belgium  and  Japan,  and  are  being  discussed  in  various  of  the 
commonwealths  of  the  United  States.  It  seems  the  simplest 
and  most  just  of  the  many  schemes  that  have  been  proposed. 

Another  system  proposed  to  insure  proportional  representa- 
tion is  known  as  the  Hare  system,  having  been  suggested  by  an 
Englishman  named  Hare.  According  to  this  system  each  voter 


128      AN   INTRODUCTION   TO   THE   STUDY  OF  GOVERNMENT 

has  but  one  vote,  but  he  is  allowed  to  indicate  his  first,  second, 
and  third  choice  on  a  single  ballot.  The  number  of  votes 
Proportional  necessary  to  elect  a  candidate  is  found  by  dividing 
representa-  the  number  of  representatives  to  be  elected  into 
Hare  sys-  the  total  number  of  votes  cast,  thus  obtaining  an 
tem.  electoral  quotient.  As  soon  as  any  candidate  re- 

ceives as  first  choice  of  the  electorate  a  number  of  votes  equal 
to  the  electoral  quotient,  he  is  declared  elected  and  no  more 
votes  are  counted  for  him.  The  surplus  ballots  on  which  such 
elected  candidate  is  first  choice  are  counted  for  the  second  choice 
on  those  ballots.  After  the  second  choice  is  elected,  the  third 
choice  is  counted. 

To  make  this  clearer,  assume  again  the  district  with  10,000 
electorate  and  six  representatives  to  be  elected.  Under  the 
Hare  system  10,000  ballots  will  be  voted,  each  ballot  containing 
three  names  in  order  of  preference.  The  electoral  quotient  will 

10  000 

be  — '— —  =  1666+.     As    soon    as     any    candidate    receives 
6 

1667  votes  as  first  choice,  he  is  declared  elected,  and  any  other 
ballots  on  which  he  is  first  choice  are  counted  for  the  candidate 
on  those  ballots  indicated  as  second  choice.  In  case  after  the 
distribution  of  the  surplus  votes  of  elected  candidates  it  is  found 
that  only  five  men  have  received  over  1667  votes  and  thus 
been  elected,  the  candidate  who  has  received  the  smallest  num- 
ber of  votes  is  eliminated  and  the  ballots  on  which  he  was  first 
choice  are  transferred  to  the  second  choice  until  some  candidate 
receives  the  requisite  number. 

This  system  has  the  advantage  of  practically  insuring  to 
each  voter  that  one  of  his  three  choices  will  be  elected,  but  its 
Objections  disadvantages  outweigh  this  consideration.  It  is 
to  Hare  very  complex  in  operation,  and  the  results  depend 
system.  much  upon  chance.  The  order  in  which  the  ballots 
are  taken  and  counted  will  materially  change  the  result,  inas- 
much as  the  second  choices  upon  the  ballots  counted  for  one 
man  and  the  second  choices  upon  the  surplus  ballots  for  that 
same  man  may  materially  differ,  All  ballots  have  to  be  brought 


THE   ELECTORATE  129 

to  one  central  place  for  counting,  and  after  they  have  been  once 
counted,  a  recount  is  impossible. 

The  system  has  been  adopted  in  only  one  country  of  prom- 
inence; namely,  Denmark.     It  is  used  in  Tasmania,  Finland, 
Moravia,  and  Ireland  for  certain  elections.     It  is  use  of  Hare 
doubtful  whether  it  would  be  successful  in  elections  system, 
on  a  large  scale  and  over  a  great  area. 

For  insuring  representation  to  minorities,  although  not  nec- 
essarily in  proportion  to  their  voting  strength,  one  Minority 
scheme,  known  as  the  limited  vote  plan,  has  been  representa- 
adopted  in  some  states.     By  this  scheme  each  voter  limited  vote 
is  allowed  a  number  of  votes,  such  number,  however,  Plan- 
being  less  than  the  number  of  representatives  to  be  elected. 

Thus  in  the  hypothetical. district  with  an  electorate  of  10,000, 
and  six  representatives,  each  voter  under  this  system  would  have 
four  votes  to  be  distributed  among  the  various  candidates.  By 
careful  organization  the  minority  can  nearly  always  be  certain 
of  electing  two  of  the  six  representatives  by  casting  the  minority 
vote  solidly  for  a  certain  two  of  the  candidates,  the  majority 
vote  being  split  up  among  four  candidates  of  the  majority  party. 

The  defects  of  this  system  lie  in  the  necessity  for  complete 
party  control,  with  the  evils  which  may  attend,  and  in  the  fact 
that  it  allows  representation  only  to  a  large,  well-organized 
minority.  Where  three  political  groups  are  trying  to  elect,  it 
is  probable  that  under  this  system  one  minority  group  will  be 
left  entirely  without  representation. 

This  system  of  the  limited  vote  has  been  put  in  practice  in 
a  number  of  states  with  some  success.  Italy,  Spain,  and 
Portugal  are  among  the  most  prominent  states  use  of 
which  have  adopted  it.  In  the  United  States  the  limited  vote, 
system  has  been  used  in  certain  elections  in  Massachusetts 
and  Pennsylvania.1 

1  Pennsylvania  Constitution,  Art.  V,  Section  XVL. 

Whenever  two  judges  of  the  supreme  court  are  to  be  chosen  for  the  same 
term  of  service,  each  voter  shall  vote  for  one  only,  and  when  three  are  to  be 
chosen,  he  shall  vote  for  no  more  than  two ;  candidates  highest  in  vote  shall 
be  declared  elected. 


130      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

A  second  system  intended  to  insure  representation  to  a 
minority  group  of  the  electorate  is  known  as  the  cumulative 
Minority  vote  plan.  By  this  plan  each  voter  is  given  a 
tion^cu**  number  of  votes  equal  to  the  number  of  represen- 
muiative  tatives  to  be  elected,  and  is  allowed  to  distribute 
vote.  jus  votes  in  any  way  he  wills,  giving  one  to  a  candi- 

date, all  to  one  candidate,  or  otherwise. 

This  system,  like  the  one  mentioned  just  previously,  requires 
for  its  successful  operation  careful  party  organization  to  provide 
against  a  great  waste  of  votes.  A  popular  candidate  might 
otherwise  receive  the  cumulative  votes  of  his  party  far  in  excess 
of  the  number  required  to  elect  and  other  candidates  of  the  same 
party  fail  to  be  elected  in  consequence.  The  political  party 
machine  must  plan  beforehand  the  most  effective  use  of  its 
votes. 

The  most  conspicuous  trial  of  the  cumulative  vote  plan 
has  been  made  in  the  commonwealth  of  Illinois.1  As  a  rule  the 
Use  of  scheme  has  in  operation  given  the  minority  party  at 
cumulative  least  one  representative  in  a  district.  Occasionally, 
where  the  party  organization  of  the  majority  has 
failed  to  plan  the  vote  correctly,  the  minority  has  elected  more 
representatives  than  the  majority. 

Theoretically,  some  form  of  proportional  or  minority  repre- 
Defenseof  sentation,  preferably  the  former,  seems  the  only 
present  sys-  just  system  for  a  true  democracy ;  practically,  how- 
ever, the  simplicity  of  the  present  system  has  led  to 
its  retention  in  most  of  the  great  states  up  to  the  present  day. 
Some  defense  may  be  offered  for  the  present  system.  The 
minority  in  one  district  will  nearly  always  be  the  majority  party 

1  Illinois  Constitution,  Art.  IV,  Sections  7  and  8. 

The  house  of  representatives  shall  consist  of  three  times  the  number  of  the 
members  of  the  senate,  and  the  term  of  office  shall  be  two  years.  Three  repre- 
sentatives shall  be  elected  in  each  senatorial  district  at  the  general  election  in 
the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy-two,  and  every 
two  years  thereafter.  In  all  elections  of  representatives  aforesaid,  each  qualified 
voter  may  cast  as  many  votes  for  one  candidate  as  there  are  representatives  to 
be  elected,  or  may  distribute  the  same,  or  equal  parts  thereof,  among  the  candi- 
dates, as  he  shall  see  fit ;  and  the  candidates  highest  in  votes  shall  be  declared 
elected.  (House  Documents,  Vol.  2.) 


THE   ELECTORATE  131 

in  another  district,  so  that  a  minority  in  one  district  may  be 
represented  by  the  successful  candidates  from  another  district. 
For  example,  the  democrats  in  the  commonwealth  of  Kansas 
may  feel  that  they  are  represented  by  the  elected  democratic 
representatives  in  the  neighboring  commonwealth  of  Missouri. 
It  is  argued,  furthermore,  that  a  system  insuring  representation 
to  all  minority  political  groups  in  the  electorate  will  tend  to 
disrupt  the  government,  in  that  the  legislative  body  will  be 
composed  not  of  representatives  of  one  great  majority  party 
and  one  somewhat  smaller  minority  party,  but  of  representatives 
of  a  very  large  number  of  small  and  local  political  groups, 
unable  to  coalesce  in  opinion  and  policy,  rendering  the  neces- 
sary coalition  ministries  short-lived  and  timid,  and,  in  short, 
making  parliamentary  government  impracticable.  The  experi- 
ments in  minority  and  proportional  representation  have  not 
yet  been  conducted  long  enough  or  on  a  sufficiently  large  scale 
to  prove  or>  disprove  these  arguments. 

In  connection  with  the  appointive  power  of  the  electorate 
there  has  been  suggested  in  very  modern  times  a  removal  power. 
It  is  argued  that  the  electorate  in  an  ideal  democracy 
should  have  the  power  to  recall  its  elected  official  if 
at  any  time  such  official  is  in  the  opinion  of  the  electorate  not 
properly  performing  his  functions.     Ordinarily  an  official  is 
elected  for  a  certain  number  of  years  and  during  that  period  has 
a  certainty  of  tenure  of  his  office ;  the  institution  of  the  recall 
operates  to  make  his  tenure  of  office  indeterminate,  subject  to 
immediate  close  at  the  will  of  the  electorate. 

The  recall  has  not  been  used  in  the  case  of  national  repre- 
sentatives or  officials  of  a  state  as  yet ;  the  device  existed  in  a 
few  of  the  small  cantons  of  Switzerland  and  has  found  especial 
favor  in  certain  commonwealths  and  municipalities  of  the 
United  States,  particularly  in  the  western  portion.  Its  opera- 
tion is  simple :  on  petition  of  a  certain  proportion  of  the  elec- 
torate, usually  about  twenty-five  per  cent,  a  new  election  is  held, 
usually  with  the  official  in  question  as  one  of  the  candidates, 
at  which  it  is  determined  whether  the  official  shall  continue  in 


132      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

office  or  another  be  elected.     Details  of  operation  differ  some- 
what in  the  different  localities. 

The  advantage  of  the  recall  as  a  club  to  hold  over  dishonest 
or  inefficient  officials  is  obvious.  It  is  another  and  very  radical 
step  in  the  direction  of  complete  control  of  the  government  by 
the  electorate.  Grave  disadvantages  also  exist.  The  possi- 
bility is  always  present  that  an  honest  and  efficient  official  may, 
in  the  exercise  of  his  duties,  arouse  the  hostility  of  a  consider- 
able proportion  of  the  electorate  and  be  subjected  to  recall. 
The  effect  of  a  threat  of  recall  may  be  very  bad  upon  an  official 
disposed  to  be  efficient,  paralyzing  his  will  and  inclining  him  so 
to  conduct  his  office  as  to  meet  with  popular  approval.  The 
cost  of  the  elections  required  by  the  recall  may  amount  to 
considerable.  In  one  instance,  in  Los  Angeles,  the  cost  was  nine 
thousand  dollars.  In  cities  as  large  as  New  York  and  Chicago 
the  cost  would  probably  render  the  scheme  inadvisable.  One  of 
the  worst  features  of  the  recall  is  its  operation  in  the  cases  of 
elected  members  of  the  judiciary  in  the  various  commonwealths 
of  the  United  States.  As  has  already  been  shown  in  the  discus- 
sion of  the  judiciary,  technical  skill  and  security  in  the  tenure  of 
office  are  two  prerequisites  of  a  fair  and  impartial  judiciary. 
The  recall  undermines  these  by  destroying  the  security  in  the 
tenure  of  office  and  subjecting  the  question  of  technical  skill 
to  the  judgment  of  the  ill-informed  mass  of  the  electorate.  In 
general,  it  may  be  said  that  the  institution  of  the  recall  tends  to 
lower  the  influence  and  subtract  from  the  honor  and  dignity  of 
public  office.  It  is  probable  that  its  advantage  could  be  equally 
well  obtained  by  a  proper  use  of  impeachment  provisions. 

IV.  LEGISLATIVE  POWERS  OF  THE  ELECTORATE 

With  modern  progress  in  democratic  government  the  elec- 
torate has  gained  not  only  the  power  of  appointing  the  officials 
Power  of  but  in  some  states  a  considerable  degree  of  legisla- 
eiectorate:  tive  power  as  well.  Originally,  of  course,  certain 
Lve*  representatives  of  the  people  were  elected  to  exercise 
the  legislative  function  in  the  government.  So  distrustful  has 


THE   ELECTOEATE  133 

the  electorate  grown  of  its  own  chosen  representatives,  however, 
that  provisions  have  been  passed  by  which  the  electorate  can 
itself  initiate  legislation,  or  can  require  that  a  legislative  meas- 
ure passed  by  its  representatives  be  referred  to  it  directly  for  its 
approval  or  disapproval.  The  provisions  by  which  these  ends 
are  accomplished  are  popularly  known  respectively  as  the 
initiative  and  the  referendum. 

The  initiative  provides  that  a  designated  proportion  of  the 
electorate  may  frame  a  legislative  measure,  present  it  to  the 
legislature,  and,  if  it  be  not  passed,  require  that  such        .   . 
measure  be  submitted  for  approval  or  disapproval  to 
the  whole  electorate.     Usually  the  proportion  of  the  electorate 
necessary  to  initiate  legislation  is  fixed  at  about  five  per  cent. 

The  referendum  provides  that  under  certain  conditions  a 
measure  passed  by  the  legislative  body  shall  be  submitted  for 
final  approval  or  disapproval  to  the  whole  electorate.  Referen- 
The  referendum  provision  may  be  compulsory  for  all  dum- 
measures,  as  in  certain  cantons  of  Switzerland,  may  be  com- 
pulsory only  for  constitutional  changes,  as  in  other  cantons  of 
Switzerland  and  in  most  of  the  commonwealths  of  the  United 
States,  or  may  be  dependent  upon  the  demand  of  a  designated  pro- 
portion (usually  between  five  and  ten  per  cent)  of  the  electorate. 

The  initiative  and  referendum  provisions  for  measures  for  the 
whole  state  is  found  in  Switzerland,  the  initiative  applying  to 
proposed  constitutional  amendments  alone,  the  refer-  Use  of  ini_ 
endum  being  compulsory  for  amendments  to  the  con-  tiative  and 
stitution  and  optional  or  on  demand  for  ordinary  referendum- 
laws  and  statutes.  The  referendum,  without  the  initiative,  is 
provided  by  the  constitution  of  the  Australian  Commonwealth. 
Both  initiative  and  referendum  are  used  in  New  Zealand  for 
certain  special  questions,  as  of  taxes  or  liquor  license.  A  bill 
has  been  introduced  in  England  to  provide  for  the  referendum 
to  decide  serious  constitutional  issues,  and  agitation  exists  at 
present  in  France  and  Norway  to  provide  both  initiative  and 
referendum,  especially  for  local  issues.  In  the  United  States 
neither  the  initiative  nor  the  referendum  is  provided  for  by  the 


134      AN   INTRODUCTION   TO  THE    STUDY   OF   GOVERNMENT 

constitution  for  the  whole  state.  Forms  of  the  initiative  and 
referendum  have  been  known  and  used  in  purely  local  issues, 
however,  for  many  years.  In  very  recent  times  initiative  and 
referendum  provisions  have  been  incorporated  into  the  constitu- 
tion of  various  commonwealths,  as  Oklahoma,  Oregon,  South 
Dakota,  Utah,  and  Missouri,  as  a  part  of  the  regular  legislative 
machinery. 

Direct  legislation  (that  is,  the  initiative  and  referendum)  has 
been  tried  more  fully  and  more  successfully  in  Switzerland  than 
Results  of  in  any  other  state.  The  results  of  the  trial  have  on 
direct  legis-  ^he  whole  been  successful,  giving  Switzerland  a  more 
Switzer-  ideally  democratic  government  than  any  other  state 
land.  nas  The  legislature  in  Switzerland  has  become 

more  an  advisory  body  than  a  legislative  body  ;  the  attention 
of  the  Swiss  electorate  is  concentrated  on  measures  rather  than 
on  men,  thus  so  minimizing  the  necessity  for  party  politics  that 
parties  have  feeble  organization  and  no  very  definite  program  ; 
and  in  general,  it  is  argued  that  direct  legislation  has  prevented 
bribery  and  corruption.  Even  with  these  manifest  advantages, 
however,  a  decided  disadvantage  is  to  be  noted  in  the  indiffer- 
ence of  the  electorate.  Rarely  has  more  than  55  per  cent  of  the 
electorate  voted,  and  where  compulsory  voting  exists,  a  notable 
proportion  of  the  electorate  cast  blank  ballots.  This  indiffer- 
ence undoubtedly  arises  from  the  large  number  of  elections 
necessary,  sometimes  fifteen  or  twenty  in  a  year. 

In  considering  transplanting  the  initiative  and  referendum 

from  Switzerland  to  the  United  States,  allowance  must  be  made 

for  differences  in  conditions.     The  Swiss  electorate 

conditions      is  relatively  small  in  numbers  and  high  in  intelligence 


in  the  ^d  honesty.     Few  laws  are  offered  and  few  passed, 

states  which  and  the  laws  in  general  are  brief  and  simply  phrased, 
would  af-       the  executive  being  left  to  execute  them  by  such 

feet     opera-  ,  ,  __ 

tion  of  ini-  measures  as  are  deemed  necessary.     No  executive  or 

JUc*icial  vet°   uP°n  tne  acts  °*  tne  legislative  body 

exists.     In  the  United  States  the  electorate  is  huge 
in  number   and  scattered  over   a  vast  territory.    With  size 


THE  ELECTORATE  135 

and  extent,  the  clumsiness  and  expense  in  the  operation  of 
direct  legislation  are  enormously  increased.  In  the  United 
States  we  have  made  citizenship  and  the  vote  easy  to  acquire, 
with  the  result  that  a  large  proportion  of  the  electorate  is 
unintelligent  and  unused  to  our  social  and  political  conditions, 
and  a  certain  proportion  is  open  to  purchase.  In  the  United 
States,  an  enormous  number  of  laws  are  considered  and 
passed  each  year.  The  late  Senator  D.  B.  Hill  computed  that 
14,000  laws  were  passed  by  the  national  and  commonwealth 
governments  during  a  single  year.  During  a  ten-year  period 
the  legislature  of  the  commonwealth  of  New  York  averaged 
550  laws  a  year.  Also,  the  laws  are  commonly  intended  to  be 
exhaustive,  covering  all  possible  contingencies  of  application 
and  execution.  Direct  legislation  in  the  United  States  would 
thus  throw  a  great  burden  upon  the  electorate,  necessitating  a 
large  number  of  elections  with  the  presentation  of  many  com- 
plex measures  at  each  election.  The  electorate  in  the  United 
States  is  accustomed  to  depute  men  to  do  its  legislative  work 
for  the  state,  is  really  better  qualified  to  vote  upon  men  than 
upon  measures.  Direct  legislation  is  contrary  to  our  habits. 
It  is  doubtful  whether  direct  legislation  would,  as  some  argue, 
destroy  political  parties.  It  is  possible  that  the  party  out  of 
power  would  use  the  initiative  and  referendum  to  harass  the 
majority  and  delay  constructive  action.  In  the  United  States 
we  already  have  checks  upon  the  legislative  body  in  the  shape 
of  the  executive  veto  and  the  judicial  power  to  declare  measures 
unconstitutional.  Direct  legislation  would  tend  to  destroy  the 
value  of  these  checks  and  thus  change  the  whole  character  of  the 
government.  The  responsibility  of  the  legislative  body  would 
disappear.  The  legislature  might  become  little  more  than  a 
committee  to  draft  legislation  for  the  people,  the  executive  would 
be  powerless  to  veto,  and  the  Supreme  Court,  after  legislation 
had  been  passed  by  the  people,  would  hesitate  to  declare  it 
unconstitutional.  The  introduction  of  direct  legislation  in  the 
national  government  of  the  United  States  under  the  present 
conditions  is  of  doubtful  expediency. 


136      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

If  the  initiative  and  referendum  could  be  considered  and  used, 
not  as  a  means  of  legislation  but  as  a  check  upon  legislation,  as 
Possible  ad-  a  Possible  cure  for  bribery  and  corruption,  as  a  club 
vantages  of  to  be  held  in  reserve  over  inefficient  or  stubborn 
Stion  muier  legislatives,  these  provisions  might  be  of  great  value, 
good  condi-  If,  furthermore,  the  electorate  can  be  elevated  to 
a  high  degree  of  intelligence  and  honesty,  so  that 
votes  may  be  given  with  judgment  and  we  may  be  sure  that 
the  provisions  will  not  be  corruptly  used  for  party  purposes, 
direct  legislation  may  be  a  blessing.  Until  such  ideal  conditions 
be  established,  however,  the  disadvantages  of  introducing  the 
initiative  and  referendum  in  states  with  broad  territory  and 
large  electorate  of  mixed  character  seem  to  outweigh  the  possible 
advantages. 


Chap.  VII.    Statistics  and  Illustrative  Citations 


EXTRACT  FROM  THE  CONSTITUTION  OF  BELGIUM  TO  SHOW  THE 
PROVISIONS  FOR  WEIGHTED  AND  COMPULSORY  VOTING 

Section  1.     The  House  of  Representatives 

ART.  47.  The  members  of  the  House  of  Representatives 
shall  be  chosen  by  direct  election  under  the  following  regula- 
tions : 

One  vote  is  allotted  to  citizens  who  have  reached  the  age 
of  twenty-five  years,  resident  for  at  least  one  year  in  the  same 
commune  and  who  are  not  otherwise  excluded  by  law. 

One  additional  vote  is  allotted  in  consideration  of  any  one 
of  the  following  conditions  : 

1)  Having  reached  the  age  of  thirty-five  years,  being  married 
or  a  widower  with  legitimate  offspring,   and  paying  to  the 
state  a  tax  of  not  less  than  five  francs  as  a  householder,  unless 
exempt  on  account  of  his  profession. 

2)  Having  reached  the  age  of  twenty-five  years  and  being 
the  owner  either  of  real  estate  of  the  value  of  at  least  2000 
francs,  said  value  to  be  rated  on  the  basis  of  the   cadastral 
assessment,  or  possessing  income  from  land  corresponding  to 
such  valuation,  or  being  inscribed  in  the  great  book  of  the 
public  debt,  or  possessing  obligations  of  the  Belgian  govern- 
ment savings-bank  bearing  at  least  100  francs  interest. 

These  inscriptions  and  bank-books  must  have  belonged  to 
the  holder  for  at  least  two  years. 

The  property  of  the  wife  is  counted  with  that  of  the  husband  ; 
that  of  minor  children  with  that  of  the  father. 

Two  additional  votes  are  allotted  to  citizens  who  have  reached 
the  age  of  twenty-five  years,  and  who  fulfill  the  following 
conditions : 

A)  Holding  a  diploma  from  an  institution  of  higher  instruc- 
tion, or  an  indorsed  certificate  showing  the  completion  of  a 
course  of  secondary  education  of  the  higher  degree,  without 
distinction  between  public  or  private  institutions. 

137 


138      AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

B)  Filling  or  having  filled  a  public  office,  holding  or  having 
held  a  position,  practicing  or  having  practiced  a  private  pro- 
fession which  presupposes  that  the  holder  possesses  at  least 
the  knowledge  imparted  in  secondary  instruction  of  the  higher 
degree.  These  offices,  positions,  and  professions,  likewise  the 
time  during  which  they  must  have  been  held  or  practiced,  shall 
be  determined  by  law. 

No  one  shall  have  more  than  three  votes.1 

ART.  48.  The  constitution  of  the  electoral  colleges  shall  be 
regulated  by  law  for  each  province. 

Voting  is  obligatory;  it  shall  take  place  in  the  commune, 
when  not  otherwise  determined  by  law.1 


STATISTICS  SHOWING  THE  INJUSTICE  OF  ELECTION  BY 
MAJORITIES 


(a) 

UNITED   STATES.      FIFTY-SECOND   CONGRESS — ELECTION,    1888 


PABTIES 

VOTE 

ELECTED 

PER  CENT 
OP  VOTE 

PER  CENT  OP 
REPRESENTA- 
TION 

Republican     .     . 

4,217,266 

88 

42.9 

26.5 

Democrat  . 

4,974,450 

235 

50.6 

71.1 

Populist     .     .     . 

354,217 

9 

3.7 

2.4 

Prohibition     .     . 

207,814 

2.1 

Independent  .     . 

76,788 

.7 

9,830,535 

332 

100 

100 

1  As  amended  Sept.  7,  1893.  Elections  of  representatives  are  regulated  by 
laws  of  April  12,  and  June  28,  1894,  as  modified  by  laws  of  June  11,  1896,  March 
31,  1898,  December  29,  1899,  and  April  18,  1902.  Proportional  representation 
was  introduced  by  the  law  of  December  29,  1899.  (From  Dodd's  "  Modern 
Constitutions.") 


THE   ELECTORATE 


139 


(5) 


OHIO. 


REPRESENTATION  OF  THE   STATE  IN  CONGRESS  FROM 
1877-1897 


REPRESENTATIVES 

CONGRESS 

YEARS 

Actual 

Proportional 

Rep. 

Dem. 

Rep. 

Dem. 

Rep. 

Dem. 

45th    .     . 

1877-79 

314,529 

310,434 

12 

8 

10 

10 

46th    .     . 

1879-81 

277,875 

264,737 

9 

11 

10 

10 

47th    .     . 

1881-83 

405,042 

340,572 

15 

5 

11 

9 

48th    .     . 

1883-85 

306,674 

268,785 

8 

13 

11 

10 

49th    .     . 

1885-87 

395,596 

380,934 

10 

11 

11 

10 

50th    .     . 

1887-89 

336,063 

325,629 

15 

6 

11 

10 

51st     .     . 

1889-91 

412,520 

395,639 

16 

5 

11 

10 

52d     .     . 

1891-93 

362,624 

350,528 

7 

14 

11 

10  » 

53d      .     . 

1893-95 

397,320 

407,120 

9 

12 

10 

10 

54th    .     . 

1895-97 

407,371 

274,670 

19 

2 

12 

82 

[(Commons,  "Proportional  Representation.") 
(c) 

AUSTRALIA.      ELECTION  OF  SENATORS,   1910 

Victoria 


SUCCESSFUL 


UNSUCCESSFUL 


Findley  (Lab.) 
Barker  (Lab.)  . 
Blakey  (Lab.) 


217,573 
216,199 
215,117 


648,889 


Best  (Fusionist)         .     . 
Trenwith  (Fusionist) 
M'Cay  (Fusionist)     .     . 
Goldstein  (Independent) 
Ronald  (Independent) 


213,976 

211,058 

195,477 

53,583 

18,380 

692,474 


(Humphrey,  "Proportional  Representation.") 


1  One  Prohibitionist. 


2  One  Populist. 


140     AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


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THE   ELECTOEATE 


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142      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

3 

EXAMPLES  OF  PROVISIONS  FOR  INITIATIVE  AND  REFERENDUM 

(a) 

SWITZERLAND 

ART.  89.  Federal  laws,  decrees,  and  resolutions  shall  be 
passed  only  by  the  agreement  of  the  two  councils. 

Federal  laws  shall  be  submitted  for  acceptance  or  rejection 
by  the  people,  if  the  demand  is  made  by  30,000  voters  or  by 
eight  cantons.  The  same  principle  applies  to  federal  resolu- 
tions which  have  a  general  application,  and  which  are  not  of 
an  urgent  nature. 

Chapter  III.    Amendment  of  the  Federal  Constitution  1 

ART.  118.  The  federal  constitution  may  at  any  time  be 
amended,  in  whole  or  in  part. 

ART.  119.  Total  revision  shall  take  place  in  the  manner 
provided  for  passing  federal  laws. 

ART.  120.  When  either  council  of  the  Federal  Assembly 
resolves  in  favor  of  a  total  revision  of  the  constitution  and  the 
other  council  does  not  consent  thereto,  or  when  fifty  thousand 
Swiss  voters  demand  a  total  revision,  the  question  whether 
the  federal  constitution  ought  to  be  revised  shall  be  in  either 
case  submitted  to  a  vote  of  the  Swiss  people,  voting  yes  or  no. 

If  in  either  case  the  majority  of  those  voting  pronounce  in 
the  affirmative,  there  shall  be  a  new  election  of  both  councils 
for  the  purpose  of  undertaking  the  revision. 

ART.  121.  Partial  revision  may  take  place  either  by  popu- 
lar initiative  or  in  the  manner  provided  for  the  passage  of  federal 
laws. 

The  popular  initiative  shall  consist  of  a  petition  of  fifty 
thousand  Swiss  voters  for  the  adoption  of  a  new  article  or  for 
the  abrogation  or  amendment  of  specified  articles  of  the  con- 
stitution. 

When  several  different  subjects  are  proposed  by  popular 
initiative  for  revision  or  for  adoption  into  the  federal  constitu- 
tion, each  one  of  them  must  be  demanded  by  a  separate  initia- 
tive petition. 

1  Chapter  iii  was  revised  on  July  5,  1891,  Arts.  118-123  being  substituted 
for  the  original  Arts.  118-221 ;  the  important  change  is  in  Art.  121,  which 
extends  popular  initiative  to  partial  revision  of  the  constitution. 


THE  ELECTOKATE  143 

The  initiative  petition  may  be  presented  in  general  terms  or 
as  a  completed  proposal  of  amendment. 

If  the  initiative  petition  is  presented  in  general  terms  and 
the  federal  legislative  bodies  are  in  agreement  with  it,  they 
shall  draw  up  a  project  of  partial  revision  in  accordance  with 
the  sense  of  the  petitioners,  and  shall  submit  it  to  the  people 
and  the  cantons  for  acceptance  or  rejection.  If,  on  the  con- 
trary, the  Federal  Assembly  is  not  in  agreement  with  the  peti- 
tion, the  question  of  partial  revision  shall  be  submitted  to  a 
vote  of  the  people,  and  if  a  majority  of  those  voting  pronounce 
in  the  affirmative,  the  Federal  Assembly  shall  proceed  with 
the  revision  in  conformity  with  the  popular  decision. 

If  the  petition  is  presented  in  the  form  of  a  completed  proj- 
ect of  amendment  and  the  Federal  Assembly  is  in  agreement 
therewith,  the  project  shall  be  submitted  to  the  people  and 
the  cantons  for  acceptance  or  rejection.  If  the  Federal  As- 
sembly is  not  in  agreement  with  the  project,  it  may  prepare  a 
project  of  its  own,  or  recommend  the  rejection  of  the  proposed 
amendment,  and  it  may  submit  its  own  counter-project  or 
its  recommendation  for  rejection  at  the  same  time  that  the 
initiative  petition  is  submitted  to  the  vote  of  the  people  and 
cantons. 

ART.  122.  The  details  of  procedure  in  cases  of  popular 
initiative  and  popular  votes  on  amendments  to  the  constitution 
shall  be  determined  by  federal  law. 

ART.  123.  The  amended  federal  constitution  or  the  revised 
portion  of  it  shall  be  in  force  when  it  has  been  adopted  by  a 
majority  of  Swiss  citizens  voting  thereon  and  by  a  majority 
of  the  cantons. 

In  making  up  the  majority  of  cantons  the  vote  of  a  half- 
canton  shall  be  counted  as  half  a  vote. 

The  result  of  the  popular  vote  in  each  canton  shall  be  con- 
sidered as  the  vote  of  the  canton. 

(6) 

UNITED  STATES 

Commonwealth  of  Oregon 
(June  4,  1906) 

Article  IV  of  the  Constitution  of  the  State  of  Oregon  shall 
be,  and  hereby  is,  amended  by  inserting  the  following  section 


144      AN   INTRODUCTION   TO  THE   STUDY   OF  GOVERNMENT 

in  said  article  IV  after  section  1,  and  before  section  2,  and  it 
shall  be  designated  in  the  Constitution  as  section  la  of  article 
IV: 

"SECTION  la.  The  referendum  may  be  demanded  by  the 
people  against  one  or  more  items,  sections,  or  parts  of  any  act 
of  the  legislative  assembly  in  the  same  manner  in  which  such 
power  may  be  exercised  against  a  complete  act.  The  filing 
of  a  referendum  petition  against  one  or  more  items,  sections, 
or  parts  of  an  act  shall  not  delay  the  remainder  of  that  act 
from  becoming  operative.  The  initiative  and  referendum 
powers  reserved  to  the  people  by  this  Constitution  are  hereby 
further  reserved  to  the  legal  voters  of  every  municipality  and 
district,  as  to  all  local,  special,  and  municipal  legislation,  of 
every  character,  in  or  for  their  respective  municipalities  and 
districts.  The  manner  of  exercising  said  powers  shall  be  pre- 
scribed by  general  laws,  except  that  cities  and  towns  may  pro- 
vide for  the  manner  of  exercising  the  initiative  and  referendum 
powers  as  to  their  municipal  legislation.  Not  more  than  ten 
per  cent  of  the  legal  voters  may  be  required  to  order  the  refer- 
endum nor  more  than  fifteen  per  cent  to  propose  any  measure, 
by  the  initiative,  in  any  city  or  town." 

Sections  1  and  2  of  article  XVII  of  the  Constitution  of  the 
State  of  Oregon  shall  be,  and  hereby  are,  amended  to  read  as 
follows : 

"Ssc.  1.  Any  amendment  or  amendments  to  this  Constitu- 
tion may  be  proposed  in  either  branch  of  the  legislative  as- 
sembly, and  if  the  same  shall  be  agreed  to  by  a  majority  of  all 
the  members  elected  to  each  of  the  two  houses,  such  proposed 
amendment  or  amendments  shall,  with  the  yeas  and  nays 
thereon,  be  entered  in  their  journals  and  referred  by  the 
Secretary  of  State  to  the  people  for  their  approval  or  rejection, 
at  the  next  regular  general  election,  except  when  the  legisla- 
tive assembly  shall  order  a  special  election  for  that  purpose. 
If  a  majority  of  the  electors  voting  on  any  such  amendment 
shall  vote  in  favor  thereof,  it  shall  thereby  become  a  part  of 
this  Constitution.  The  votes  for  and  against  such  amendment 
or  amendments,  severally,  whether  proposed  by  the  legislative 
assembly  or  by  initiative  petition,  shall  be  canvassed  by  the 
Secretary  of  State  in  the  presence  of  the  Governor,  and  if  it 
shall  appear  to  the  Governor  that  the  majority  of  the  votes 
cast  at  said  election  on  said  amendment  or  amendments,  sever- 
ally, are  cast  in  favor  thereof,  it  shall  be  his  duty  forthwith 
after  such  canvass,  by  his  proclamation,  to  declare  the  said 


THE  ELECTORATE 


145 


amendment  or  amendments,  severally,  having  received  said 
majority  of  votes  to  have  been  adopted  by  the  people  of  Ore- 
gon as  part  of  the  Constitution  thereof,  and  the  same  shall  be 
in  effect  as  a  part  of  the  Constitution  from  the  date  of  such 
proclamation.  When  two  or  more  amendments  shall  be  sub- 
mitted in  the  manner  aforesaid  to  the  voters  of  this  State,  at 
the  same  election,  they  shall  be  so  submitted  that  each  amend- 
ment shall  be  voted  on  separately.  No  convention  shall  be 
called  to  amend  or  propose  amendments  to  this  Constitution, 
or  to  propose  a  new  Constitution,  unless  the  law  providing  for 
such  convention  shall  first  be  approved  by  the  people  on  a  refer- 
endum vote  at  a  regular  general  election.  This  article  shall 
not  be  construed  to  impair  the  right  of  the  people  to  amend 
this  Constitution  by  vote  upon  an  initiative  petition  there- 
for." 

NOTE.  —  Nine  states  have  in  one  form  or  another  adopted  the  initiative  and 
referendum:  Delaware,  Idaho,  Maine,  Missouri,  Montana,  Oklahoma,  Oregon, 
South  Dakota,  and  Utah.  The  most  complete  test  of  the  provisions  has  been 
made  in  Oregon. 


STATISTICS  ON   THE   USE   OF  THE   INITIATIVE   AND   REFERENDUM 

The  following  is  a  list  of  the  measures  submitted  to  the  people 
of  Oregon  at  the  election  of  1910,  with  the  results  and  per- 
centage of  total  vote  polled  for  each  measure. 


YES 

No 

MAJOR- 
ITY AP- 
PROVING 

MAJOR- 
ITY RE- 
JECTING 

PER- 
CENTAGE 
OF  TOTAL 
VOTE  FOR 
CANDI- 
DATES 

1910.  —  Total  vote,  120,248  : 
Woman  suffrage  amendment  1 
Act  establishing  branch  in- 
sane   asylum    in    eastern 
Oregon  2 

35,270 
50  135 

59,065 
41  504 

8630 

23,795 

78 
76 

Act    calling    convention    to 
revise      State      Constitu- 
tion 2 

00    -lA'J 

en  Q74. 

Q«  CQ1 

fiQ 

Amendment  providing  sepa- 
rate election  districts  for 
members   of   the   General 
Assembly  ^ 

24000 

54252 

30252 

65 

146      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


YES 

No 

MAJOR- 
ITY AP- 
PROVING 

MAJOR- 
ITY RE- 
JECTING 

PER- 
CENTAGE 
OP  TOTAL 
VOTE  FOB 
CANDI- 
DATES 

Amendment  repealing  re- 
quirement that  all  taxes 
shall  be  "equal  and  uni- 
form"2   

37619 

40  172 

2553 

64 

Amendment  authorizing  es- 
tablishment of  railroad 
districts  and  purchase 
and  construction  of  rail- 
roads 2  . 

32  844 

46070 

13  22fi 

fi^ 

Amendment  authorizing  uni- 
form taxation  "except  on 
property    not    specifically 
taxed,"  etc.2    
Act  increasing  judge's  salary 
in  eighth  judicial  district  l 
Bill      to      create     Nesmith 
County  1 

31,629 
13,161 
22  866 

41,692 
71,503 
60  591 



10,063 
58,342 
37  725 

61 
70 
6Q 

Bill  to  maintain  state  normal 

K.f)  1Q1 

4O  O44 

in  147 

7c 

Bill  to  create  Otis  County  l 
Bill  changing  boundaries  of 
Clackamas  and  Multnomah 
Counties  l        

17,426 
16,250 

62,016 
69002 

44,590 
52,752 

66 
71 

Bill  to  create  Williams 
County  1 

14  508 

64090 

49  582 

65 

Amendment  abolishing  poll 
tax1 

44  171 

42  127 

2  044 

72 

Amendment  giving  cities  and 
towns  special  rights  under 
the  local  option  law  x     .     . 
Bill   to   fix  liability   of   em- 
ployers 1 

53,321 

56  258 

50,779 
33  943 

2,542 
22  315 

—  — 

86 
75 

Bill  to  create  Orchard 
County  •"• 

1  K.  ftftA 

«o  719 

47  O48 

AK 

T^ill  to  PTPatft  f^larlr   f^rniirfv  l 

1  r  «i  q 

A1    Jf\A 

4fi  OQ1 

OA 

Bill     to     maintain     normal 
school  at  Weston  1        .     . 
Bill  to  change  boundaries  of 
Washington     and     Mult- 

40,898 

Id  O4.7 

46,201 

00  001 



5,303 

KA  174 

72 

AQ 

Bill  to  maintain  normal 
school  at  Ashland  l  .  . 

38,473 

48,655 



10,182 

72 

THE  ELECTORATE 


147 


YES 

No 

MAJOR- 
ITY AP- 
PROVING 

MAJOR- 
ITY RE- 

JECTING 

PER- 
CENTAGE 
OP  Tor  AL 
VOTE  FOR 
CANDI- 
DATES 

Amendment  prohibiting  the 

4.0   KAf) 

fi1  991 

17  fi81 

07 

Bill     to     make     prohibition 
amendment  effective  l 
Bill  creating  a  board  to  draft 

42,651 

QO  004. 

63,564 

e;i  710 



20,913 
1Q4Q^ 

87 
6Q 

Bill  to  prohibit  seine,  trap,  or 
wheel    fishing    in    Rogue 
River1 

49712 

33397 

16315 

69 

Bill    to     create     Deschutes 

17,592 

60,486 

42,894 

65 

Bill   for   general   law   under 
which  new  counties  may  be 
created,  or  county  bound- 
aries changed  l     .     .     .     . 
Amendment  permitting  coun- 
ties to  incur  indebtedness 
beyond    $5000    to    build 
roads  *                        ... 

37,129 
51  275 

42,327 
32906 

18369 

5,198 

66 
70 

Bill  extending  the  direct  pri- 
mary law  to  allow  voters 
to  express  their  choice  for 
President  and  Vice  Presi- 
dent, presidential  electors, 
and  delegates  to  national 

4°.  ^^^ 

41  fi94 

1  79Q 

71 

Bill  to  create  the  "Board  of 
People's  Inspectors  of  Gov- 
pTTimpnt  M  ^ 

29955 

52  538 

22  583 

68 

Amendment  extending  initia- 
tive, referendum,  and  recall, 
making  terms  of  members 

07  nqi 

44  ^fifi 

7  QQC 

fi7 

Amendment    providing    for 
verdict  of  three  fourths  of 
jury  in  civil  cases  l  .     .     . 

44,538 

39,399 

5,139 

69 

(Given  in  Oberholtzer,  "  The  Referendum,  Initiative,  and  Recall 

in  America.") 

1  Initiated  by  the  people. 

*  Acts  or  constitutional  amendments  submitted  in  answer  to  petition  of  the 
people,  i.e.  referendum. 

'  Acts  or  constitutional  amendments  submitted  by  the  legislature  upon  its 
own  motion. 


148      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


INITIATIVE  AND  REFERENDUM  IN  LOCAL  MATTERS 

Various  commonwealths  have  adopted  the  initiative  and 
referendum  in  local  matters  by  general  legislation.  The  per- 
centages required  for  the  operation  of  the  provisions  are  as 
follows : 


INITIATIVE 
PEB  CENT 

REFEREN- 
DUM 
PER  CENT 

South  Dakota  

5 

5 

Nebraska      ....                                  . 

20 

20 

Oregon     

15 

10 

Montana       

8 

5 

Oklahoma 
In  counties  and  districts       

16 

10 

In  cities    ..... 

25 

25 

Maine      

Facul  tati  ve 

Arkansas       

Facultative 

Colorado       

15 

10 

Wisconsin 
General  election      ....               ... 

15 

20 

Special  election       

25 

20 

Ohio    

30 

15 

California  (counties) 
General  election      

10 

20 

Special  election       

20 

20 

California  (cities) 
Regular  election      
Special  election       

15 
30 

25 
25 

(From  Oberhqltzer,  "  The  Referendum,  Initiative,  and  Recall 
in  America.") 


In  various  other  states,  cities  have  charters  providing   for 
the  initiative  and  referendum.    For  example, 


THE   ELECTORATE 


149 


INITIATIVE 
AT  REGULAR 
ELECTION 

INITIATIVE 
AT  SPECIAL 
ELECTION 

REFERENDUM 

Grand  Rapids  Mich. 

12% 

12% 

Wilmington,  N.  C  

10% 

35% 

35% 

Greensboro,  N.  C  
Dallas  Texas 

10% 

5% 

25% 
15% 

25% 
15% 

Fort  Worth,  Texas     

15% 

15% 

Amarillo,  Texas    

5% 

15% 

15% 

Austin,  Texas   

25% 

25% 

Beaumont  Texas       

8% 

20% 

20% 

Marshall,  Texas    

25% 

25% 

Miami  Florida  . 

10% 

15% 

10% 

15% 

30% 

Haver  hill,  Mass  

10% 

25% 

25% 

Gloucester  Mass.       

10% 

25% 

25% 

4  I 

THE  RECALL 
(a) 

TYPICAL   PROVISIONS   FOR  THE   OPERATION   OF   THE    RECALL 

Extract  from  the  Iowa  Law  authorizing  certain  cities  to  estab- 
lish government  by  commission,  showing  the  recall  provision. 

"The  holder  of  any  elective  office  may  be  removed  at  any 
time  by  the  electors  qualified  to  vote  for  a  successor  of  such 
incumbent.  The  procedure  to  effect  the  removal  of  an  incum- 
bent of  an  elective  office  shall  be  as  follows :  A  petition  signed 
by  electors  entitled  to  vote  for  a  successor  to  the  incumbent 
sought  to  be  removed,  equal  in  number  to  at  least  twenty-five 
per  centum  of  the  entire  vote  for  all  candidates  for  the  office 
of  mayor  cast  at  the  last  preceding  general  municipal  election, 
demanding  an  election  of  a  successor  of  the  person  sought  to 
be  removed,  shall  be  filed  with  the  city  clerk,  which  petition 
shall  contain  a  general  statement  of  the  grounds  for  which  the 
removal  is  sought.  The  signatures  to  the  petition  need  not 
all  be  appended  to  one  paper,  but  each  signer  shall  add  to  his 
signature  his  place  of  residence,  giving  the  street  and  number. 
One  of  the  signers  of  each  such  paper  shall  make  oath  before 
an  officer  competent  to  administer  oaths  that  the  statements 


150      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

therein  made  are  true  as  he  believes,  and  that  each  signature 
to  the  paper  appended  is  the  genuine  signature  of  the  person 
whose  name  it  purports  to  be.  Within  ten  days  from  the  date 
of  filing  such  petition  the  city  clerk  shall  examine  and  from 
the  voters'  register  ascertain  whether  or  not  said  petition  is 
signed  by  the  requisite  number  of  qualified  electors,  and,  if 
necessary,  the  council  shall  allow  him  extra  help  for  that  pur- 
pose ;  and  he  shall  attach  to  said  petition  his  certificate,  show- 
ing the  result  of  said  examination.  If  by  the  clerk's  certificate 
the  petition  is  shown  to  be  insufficient,  it  may  be  amended 
within  ten  days  from  the  date  of  said  certificate.  The  clerk 
shall,  within  ten  days  after  such  amendment,  make  like  ex- 
amination of  the  amended  petition,  and  if  his  certificate  shall 
show  the  same  to  be  insufficient,  it  shall  be  returned  to  the 
person  filing  the  same;  without  prejudice,  however,  to  the 
filing  of  a  new  petition  to  the  same  effect.  If  the  petition  shall 
be  deemed  to  be  sufficient,  the  clerk  shall  submit  the  same  to 
the  council  without  delay.  If  the  petition  shall  be  found  to 
be  sufficient,  the  council  shall  order  and  fix  a  date  for  holding 
the  said  election,  not  less  than  thirty  days  or  more  than  forty- 
days  from  the  date  of  the  clerk's  certificate  to  the  council 
that  a  sufficient  petition  is  filed.  The  council  shall  make  or 
cause  to  be  made  publication  of  notice  and  all  arrangements 
for  holding  such  election,  and  the  same  shall  be  conducted, 
returned,  and  the  result  thereof  declared,  in  all  respects  as  are 
other  city  elections.  The  successor  of  any  officer  so  removed 
shall  hold  office  during  the  unexpired  term  of  his  predecessor. 
Any  person  sought  to  be  removed  may  be  a  candidate  to  suc- 
ceed himself,  and  unless  he  requests  otherwise  in  writing,  the 
clerk  shall  place  his  name  on  the  official  ballot  without  nomina- 
tion. In  any  such  removal  election,  the  candidate  receiving 
the  highest  number  of  votes  shall  be  declared  elected.  At  such 
election  if  some  other  person  than  the  incumbent  receives  the 
highest  number  of  votes,  the  incumbent  shall  thereupon  be 
deemed  removed  from  the  office  upon  qualification  of  his 
successor.  In  case  the  party  who  receives  the  highest  number 
of  votes  should  fail  to  qualify  within  ten  days  after  receiving 
notification  of  election,  the  office  shall  be  deemed  vacant.  If 
the  incumbent  receives  the  highest  number  of  votes,  he  shall 
continue  in  office.  The  said  method  of  removal  shall  be  cumu- 
lative and  additional  to  the  methods  heretofore  provided  by 
law."  (Quoted  in  Beard,  "Readings  in  American  Government 
and  Politics.") 


THE  ELECTORATE  151 


STATISTICS  ON  USE  OF  THE  EECALL 

The  percentage  of  names  necessary  to  make  effective  a 
recall  petition  varies  in  different  cities.  For  example, 

Twenty  per  cent  is  required  in  the  recall  of  any  county  elec- 
tive officer  of  any  county  in  California  by  a  general  law  passed 
by  the  legislature  hi  1911,  and  of  elective  officers  in  the  munic- 
ipalities of  Berkeley  and  Palo  Alto  in  California  ;  Fort  Worth, 
Texas;  Denison,  Texas  (provision  is  made  for  the  recall  of 
the  mayor  only)  ;  St.  Joseph,  Mo.  ;  Grand  Junction,  Colo. 

Twenty-five  per  cent  is  required  in  Los  Angeles,  San  Diego, 
Pasadena,  Alameda,  Santa  Cruz,  Riverside,  Santa  Barbara, 
and  Richmond,  in  California  ;  Greensboro,  N.  C.  ;  Austin,  Pales- 
tine, in  Texas  ;  Lewiston,  Idaho  ;  Haverhill,  Mass.  ;  Gardiner, 
Maine  ;  Seattle,  Wash. 

Thirty  per  cent  is  required  hi  San  Bernardino,  Cal.,  and 
Colorado  Springs,  Colo. 

Thirty-'three  and  one-third  per  cent  of  the  vote  cast  in  the 
city  for  all  candidates  for  governor  at  the  last  preceding  gen- 
eral election  is  required  in  the  municipalities  in  Wisconsin. 

Thirty-five  per  cent  is  required  in  Wilmington,  N.  C.  ;  Dallas, 
Amarillo,  and  Marshall,  Texas  ;  Tulsa,  Okla. 

Forty  per  cent  is  required  in  Santa  Monica  and  Long  Beach, 
Cal. 

Fifty-one  per  cent  is  required  in  Fresno,  Cal. 

Seventy-five  per  cent  is  required  in  municipalities  in  Illi- 
nois by  a  general  law  passed  by  the  state  legislature. 


EXAMPLES  OF  USE  OF  THE  RECALL 

Los  Angeles,  1904.    Member  of  common  council.  Recalled. 

Los  Angeles,  1909.     Mayor.     Resigned  to  prevent  recall. 
Junction  City,  Oregon,  1909.     Mayor.  Recalled. 

Estacata,  Oregon,  1910.     Mayor  and  all  councilmen.  Recalled. 

Ashland,  Oregon,  1910.     Mayor.  Not  recalled. 

Dallas,  Texas,  1910.    Member  of  School  Board.  Recalled. 

Seattle,  1911.     Mayor.  Recalled. 

Tacoma,  1911.     Mayor.  Recalled. 

Portland,  Oregon,  1911.    Member  of  city  council.  Recalled. 

Tacoma,  1911.    Four  commissioners.  Two  recalled 

and  two  not  recalled. 


CHAPTER  VIII 
POLITICAL  PARTIES 

A  POLITICAL  party  is  a  body  of  persons  organized  to  support 
and  further  certain  public  policies  and  principles  of  government. 
Definition  ^he  term  *s  popularly  applied  to  any  body  of  persons 
and  appiica-  organized  for  the  above  purpose,  whether  such  per- 
tenn'  sons  are  members  of  the  electorate  or  not  (as  the 
suffragist  "party,"  which  may  be  composed  wholly  of  women), 
but  the  political  parties  with  which  we  are  concerned  are  those 
which  are  made  up  of  groups  of  the  electorate,  those  which  are 
groups  of  voters  organized  to  support  and  further  their  respec- 
tive policies. 

Membership  in  a  political  party  is  an  entirely  voluntary  act 
on  the  part  of  the  voter.  He  is  free,  when  qualified  to  exercise 
Member-  ^ne  suffrage,  to  join  what  party  he  will.  He  is  free, 
ship  volun-  if  in  time  the  principles  of  his  party  cease  to  repre- 
sent satisfactorily  his  ideas,  to  leave  one  party  and 
ally  himself  with  another.  If,  again,  no  organized  party  suits 
his  ideas,  he  is  free  to  remain  outside  of  party  organization 
entirely,  or  he  may  try  to  organize  a  party  of  his  own. 

Not  only  is  the  individual  free  of  restrictions  in  his  choice  of 
political  party,  but  political  parties  themselves  have  occupied  a 
p  u  •  ai  peculiarly  free  position  in  respect  to  the  law.  Politi- 
parties  are  cal  parties  have  been  considered  as  voluntary  associa- 

^°ns  °^  c^zens  *or  ^eir  own  PurP°ses  >'  tne  parties 
could  make  their  own  rules  and  regulations  and  could 
manage  their  own  campaigns,  all  without  state  interference.1 
They  have  been  extra-legal  institutions,  growths  not  foreseen  or 
provided  for  by  the  fundamental  law  of  the  state. 

1  In  the  United  States,  recent  primary  laws  in  the  various  commonwealths 
have  amounted  to  a  recognition  of  the  existence  and  operation  of  parties. 

152 


POLITICAL  PARTIES  153 

In  autocratic  countries,  such  as  France  under  the  old  regime, 
the  mass  of  the  people  had  no  share  in  the  govern-  _ 
ment,  their  opinion  with  regard  to  the  public  policy  permitted 
was  neither  asked  nor  desired,  and  the  public  union  "?  aut°cra- 
and  organization  of  groups  of  citizens   to  express  naturally 
hostility  to  the  king's  ideas  would  have  been  con-  Developed 
sidered  rebellion  and  would  have  been  prevented  by  cies. 
force. 

Democracy  changed  all  this  state  of  affairs.  The  con- 
trol of  public  policy  was  intrusted  to  representatives  of  the 
people.  Liberty  of  thought  and  speech  was  the  accompaniment 
of  the  ballot.  With  such  control  of  public  policy  and  such 
liberty  of  thought  and  speech  it  was  speedily  apparent  that 
sincere  men  differed  widely  in  their  judgments  of  how  their 
nation  should  be  governed.  They  differed  on  questions  of 
foreign  policy;  they  differed  on  questions  of  internal  policy, 
on  matters  of  education,  taxation,  religion,  or  the  like.  And 
as  strong,  sincere  men  were  licensed  to  write  and  speak  their 
thoughts,  each  gained  for  himself  a  certain  following  of  voters 
who  were  influenced  by  his  arguments  and  were  willing  that 
the  nation  should  be  guided  according  to  his  ideas.  The  next 
step  was  simple.  Inasmuch  as  government  is  always  a  govern- 
ment by  persons,  the  followers  of  a  strong,  sincere  man  of  out- 
spoken political  convictions  banded  together,  organized,  to  put 
their  spokesman  in  a  position  in  the  government  where  he 
might  force  a  trial  of  his  principles. 

Such,  sketched  very  briefly,  is  the  natural  development  of 
political  parties.  *  The  necessary  premises  are  democracy  with 
its  accompanying  freedom  of  thought  and  speech.  Given  de- 
mocracy, the  development  of  political  parties  was  inevitable. 

The  differences  between  the  convictions  with  regard  to  pub- 
lic policy  are  naturally  greater  and  more  persistently  evident  in 
the  presence  of  great  and  fundamental  issues ;  /hence,  it  is  in 
the  time  when  such  issues  are  presented  for  decision  that  great 
political  parties  commonly  have  their  origin.  The  various  in- 
dividuals who  oppose  a  policy  tend  to  subordinate  their  minor 


154      AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

differences  for  the  common  strength  in  opposition,  and  on  the 
other  hand  those  who  support  the  policy  are  liable  to  combine 

for  the  same  purpose. 

Political  jus^  this  process  is  to  be  noted  in  the  origin  of 

formed  in  the  great  parties  in  the  history  of  England  and  the 
ence  of*  United  States.  In  England  the  great  issue  involved 
great  issues,  in  Parliament's  disregard  for  the  principle  of  legit- 

imacy in  calling  William  of  Orange  to  the  throne 
of  England  in  1688  was  responsible  for  clearly  defined  par- 
ties, the  Tory  party  (those  who  favored  legitimacy  and  the 
recall  of  the  Stuart  house  to  the  throne)  and  the  Whig  party 
(those  who  favored  the  supremacy  of  Parliament).  In  the 
United  States,  during  the  administration  of  our  first  President, 
the  great  issue  between  those  who  favored  a  strong  central 
national  government  and  those  who  emphasized  the  rights  of  the 
individual  and  opposed  granting  strong  powers  to  the  central 
government  developed  respectively  the  Federal  and  the  Anti- 
federal  (Republican)  parties.  Again,  at  a  later  period,  the 
great  issue  of  slavery  caused  a  new  cleavage  and  resulted  in  the 
Republican  and  Democratic  parties. 

The  nature  of  the  issue  on  which  political  parties  divide,  and 
the  relations  which  political  parties  bear  to  each  other,  have  a 
on  Peace  and  security  within  the  state. 


Im  o      ce 

o^the  na-  *     In  the  early  days  of  democracy  statesmen  bewailed 

tureofthe  "factions"  (i.e.  political  parties),  not  realizing 
their  inevitability  and  believing  them  certain  to 
arouse  civil  war.  Although  democracy  is  yet  young,  men  have 
come  to  regard  political  parties  formed  on  certain  lines  and 
operating  under  certain  conditions  as  not  only  inevitable  but 
valuable. 

In  general,  the  line  of  cleavage  between  political  parties 
should  never  be  on  racial,  religious,  or  social  grounds.  Each 
party,  if  such  line  be  drawn,  believes  that  the  success  of  its 
opponents  means  its  own  oppression  or  extinction,  and  under 
such  belief  will  fight  to  the  death.  If  such  lines  do  not  result  in 
actual  armed  rebellion,  yet  a  rancor  is  excited  which  inevi- 


POLITICAL  PARTIES  155 

tably  impedes  the  government  in  the  exercise  of  its  functions 
and  is  an  ever  present  sore  that  may  spread  to  the  whole  body 
politic.  Again,  the  members  of  each  political  party  must 
tacitly  or  avowedly  recognize  that  their  opponents  are  sincere 
in  their  beliefs,  capable  of  conducting  the  government  if  suc- 
cessful, and  as  patriotically  devoted  to  the  true  welfare  of  the 
state  as  themselves.  Here,  too,  if  the  members  of  a  political 
party  do  not  have  this  tacit  or  acknowledged  recognition  of  their 
opponents'  good  faith  and  patriotism,  they  may  feel  justified  in 
secret  intrigue  or  in  open  rebellion. 

With  the  succeeding  years  in  the  development  of  democracy 
the  conditions  under  which  political  parties  strive  for  supremacy 
are  becoming  better  and  better.  Elections  are  lost  without 
bitterness,  indeed  with  a  philosophic  acceptance  of  the  will  of 
the  majority,  and  with  a  realization  that  the  opposition  has  just 
as  much  at  stake  in  attempting  to  further  the  prosperity  of  the 
country  at  large  as  any  other  party. 

There  are  many  issues  which  are  suitable  as  a  line  of  cleavage 
between  parties,  after  barring  out  racial,  religious,  and  social 
issues.  Economic  questions,  as  the  treatment  of  issues  on 


great  corporations  ;  financial  questions,  as  the  raising  which 
of  money  for  the  expenses  of  government  by  certain  may  prop- 
kinds  of  taxes  ;   policy  toward  outlying  possessions,   erlv  divide. 
as   colonies    or    territories;  —  these    are    issues   which   allow 
honest   differences  of   opinion   and  yet   do   not   foster   that 
bitterness  which  would  surely  be  excited  by  racial,  religious,  or 
social  questions.    These  are  issues  on  which  polit- 

ical parties  may  divide  without  prospect  of  de-  political 

.,,.     ,,  parties  con- 

stroying  peace  within  the  state.  tinue  to 

Although  political  parties  were  unforeseen  and  un-  exist  ^eT 
provided  for  by  the  framers  of  modern  democracies,   because  of 
were  discountenanced  and   feared   by  democratic  value  to 
statesmen  in  the  early  days  of  democracy,  they  are  individual. 
now  commonly  recognized  as  an  essential  element  in 
the  system  of  modern  democratic  government.     Political  par- 
ties, born  of  great  national  issues,  have  continued  to  exist  after 


156      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

those  issues  have  died  away,  because  they  have  been  found 
necessary  for  democratic  government  in  modern  states. 

On  the  one  hand,  it  is  by  means  of  party  unity  that  the 
various  separate  departments  of  government  are  unified  in  their 
policy  and  operation.  The  party  in  power  commonly  controls 
the  various  branches  of  the  government,  so  that  men  of  the  same 
political  opinions,  bound  by  allegiance  to  the  same  political 
group,  are  cooperating  in  the  varied  business  of  government. 
On  the  other  hand,  political  party  organization  on  a  national 
scale,  as  in  England  and  the  United  States,  has  accomplished 
more  than  any  other  agency  to  educate  the  voters  and  acquaint 
them  with  the  questions  of  the  time.  In  the  United  States  the 
political  parties  have  knit  together  the  various  sections  of  the 
vast  extent  of  the  country,  doing  a  service  no  other  agency 
could  have  done  so  efficiently.  Further,  the  political  parties  have 
roused  popular  enthusiasm  and  inspired  the  people  to  register 
their  votes  at  the  polls,  thus  insuring  an  approximately  accurate 
expression  of  the  popular  will.  In  these  ways  political  parties  have 
actually  formed  the  machinery  by  which  democracy  has  operated. 

Not  only  has  the  political  party  system  been  valuable  to  the 
state,  but  it  has  also  been  valuable  to  the  individual  voter. 
Democracy  assumes  that  government  is  to  be  conducted  in 
accordance  with  the  will  of  those  governed  :  the  political  party 
system  furnishes  the  means  by  which  the  will  of  the  governed  is 
made  known  and  put  into  effect.  The  party  system  has  fur- 
nished the  individual  voter  with  the  means  to  make  his  opinions 
known  and  his  vote  count.  The  voters  in  a  political  party  are 
as  partners  in  a  cooperative  company.  Each  partner  is  ex- 
pected to  contribute  his  whole  political  ability  to  the  company 
and  to  work  in  harmony  with  his  colleagues.  The  political 
party  is  a  combination  of  the  political  acumen  and  the  voting 
strength  of  its  members  for  the  purpose  of  controlling  the  govern- 
ment and  putting  its  political  theories  into  practice.  A  voter 
can  accomplish  nothing  single-handed,  but  associated  with  a 
party  he  may  gain  the  influence  to  sway  the  policies  of  govern- 
ment by  the  election  of  representatives  who  support  his  views. 


POLITICAL   PARTIES  157 

Thus  political  parties  have  continued  to  exist  for  the  advan- 
tages cited  above,  even  after  the  great  issues  which  gave  them 
birth  have  disappeared  in  history.  Political  parties  persist 
because  they  have  become  necessary  both  to  the  state  and  to  the 
individual. 

In  considering  the  present  status  of    political   parties   in 
various   nations,  a   sharp    division   may  be    drawn   between 
conditions    in    England    and    the   United    States,  Political 
on  the  one  hand,   and  the  states  of  continental  party  condi- 
Europe,  on  the  other.     The  share  which  political  iand  and 


parties  have  in  the  governmental  system  is  impor-  516 
tant   in   all   modern   states,   but   political    parties  entfrom 
have  developed   in   two   radically  different  ways,  th°s?in 
with  resulting  differences  upon  their  relations  with  democra- 
the  governmental  system.  cies- 

In  the  states  of  continental  Europe  the  various  degrees  of 
political  opinion  tend  to  be  reflected  in  a  bewildering  number  of 
different  political  parties;  in  England  and  the  United  States 
the  voters  have  tended  to  rank  themselves  ordinarily  in  one  or 
the  other  of  two  great  parties  of  national  scope.  In  the  states 
of  continental  Europe  each  election  is  contested  by  candidates 
of  eight  or  ten  or  a  dozen  opposing  parties;  in  elections  in 
England  and  the  United  States  the  prominent  candidates 
stand  as  the  nominees  of  two  great  nation-wide  parties. 

The  results  of  this  difference  between  the  development  of 
the  political  party  system  affect  fundamentally  the  operation 
of  government.     In  the  states  of  continental  Europe 
the  parties  are  often  not  national  in  character,  but 
sectional  or  local.     Men  are  elected  for  their  own  conditions 
merits  rather  than  for  any  national  policies  they  J^J,^*" 
may  favor.     Local  issues  are  liable  to  determine  the 
election  of  a  member  to  the  national  legislature.     Representa- 
tives thus  elected  have  no  bonds  of  common  policy  with  their 
fellow-representatives  from  other  districts,  so  that,  when  they 
reach  the  national  legislative  house,  they  do  not  find  any  con- 
siderable number  of  fellow-members  pledged  to  general  policies 


158      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

similar  to  their  own.  In  the  legislature  such  members  either 
gravitate  to  one  of  the  several  political  groups  they  find  there 
already  loosely  formed,  or  among  themselves  form  a  new  group. 
Thus  the  legislative  body  consists  at  the  very  outset  of  a 
number  of  small  groups  composed  of  members  loosely  allied 
in  political  interest  and  bound  by  no  strict  party  allegiance. 
Rarely  does  any  one  group  hold  an  actual  majority  of  votes  in 
the  legislature.  Great  difficulty  of  legislative  action  logically 
follows.  All  measures  must  be  compromise  measures,  must 
be  framed  to  please  enough  of  the  different  groups  to  insure  a 
majority  vote. 

In  those  states  where  the  ministry  which  conducts  the  govern- 
ment is  dependent  upon  a  majority  in  the  legislative  body,  as  is 
the  case  in  France  and  Italy,  an  added  difficulty  arises.  Each 
ministry  is  a  coalition  ministry,  a  ministry  whose  members 
are  drawn  from  several  groups  to  insure  a  majority  of  votes  for 
support.  Experience  has  shown,  however,  that  a  ministry  thus 
formed  rarely  cooperates  harmoniously  in  the  work  of  the  gov- 
ernment. The  separate  members  act  as  rivals  rather  than  as 
colleagues,  each  member  being  able  to  break  up  the  coalition  of 
parties  in  the  legislative  body  by  influencing  the  representatives 
of  his  own  group  and  thus  to  destroy  the  parliamentary  support 
for  the  whole  ministry.  Intense  personal  bitterness  is  often 
aroused.  Ministries  are  commonly  very  short-lived,  with  the 
resultant  weakening  of  governmental  efficiency. 

In  those  continental  states  where  the  ministry  and  the  conduct 
of  government  are  not  directly  under  the  control  of  the  parlia- 
ment, as  is  the  case  in  Germany,  the  political  party  conditions 
do  not  disturb  the  course  of  the  government  so  seriously.  The 
minister  is  responsible  to  the  monarch  and  need  not  resign  when 
he  loses  the  support  of  the  legislature.  He  often  finds  himself, 
however,  at  odds  with  his  parliament,  is  indeed  sometimes 
severely  arraigned  by  its  members.  In  important  measures 
which  must  have  parliamentary  sanction  the  same  necessity 
for  compromise  exists  as  in  the  other  continental  states. 

The  conditions  in  continental  European  states,  as  outlined 


POLITICAL  PARTIES  159 

above,  are  by  no  means  wholly  bad.  A  strong  argument  can 
be  advanced  for  the  theory  that  these  states  present  a  more 
ideal  form  of  democracy  as  such  than  the  states  in  Defense  for 
which  only  two  parties  contend  for  power.  It  may  continental 
be  argued  that  men  do  not  naturally  divide  into  two  condltions- 
parties ;  that  the  many  parties  in  these  continental  states  most 
truly  represent  the  various  shades  of  political  opinion  through- 
out the  electorate.  In  matters  of  legislation,  compromise 
measures  are  more  truly  democratic  than  the  measures  forced 
upon  a  reluctant  minority  by  the  votes  of  the  majority.  A 
measure  that  has  endured  the  critical  scrutiny  of  the  various 
elements  of  a  coalition  ministry,  and  is  passed  by  the  support 
of  the  parliamentary  groups  from  which  those  elements  come, 
must  be  a  good  measure,  whereas  it  is  conceivable  that  a  very 
bad  measure  may  be  forced  through  the  legislature  by  the 
majority  in  a  two-party  body. 

For  the  actual  continuous  and  efficient  operation  of  govern- 
ment, however,  the  two-party  system  that  has  developed  in 
England  and  the  United  States  is  better  adapted. 
In   the    elections  in  each  of  these   countries  the  efficiency  of 


candidates  of  two  prominent  parties  of  nation-wide  the  two- 

part] 
tern. 


organization  contend  for  election,  and  the  issues  partysys~ 


before  the  electorate  are  national  issues.  The  rep- 
resentative elected  finds  in  the  legislature  a  united  body  of 
political  brethren  elected  on  the  same  issues,  having  the  same 
general  political  bias  as  himself.  In  England,  if  the  representa- 
tive is  of  the  majority  party,  he  finds  that  the  cabinet  (the 
actual  executive)  is  composed  of  the  leaders  of  his  own  party,  men 
who  had  a  part  in  defining  the  very  issue  on  which  he  himself 
was  elected.  He  finds  that  the  cabinet  members  cooperate 
harmoniously  as  colleagues  in  the  conduct  of  their  several 
departments,  that  each  measure  introduced  by  the  cabinet 
has  the  united  support  of  its  members,  and  that  his  party  in 
Parliament  customarily  supports  its  leaders  in  giving  its  sanction 
to  such  legislation  as  they  introduce.  Thus  the  party  system 
provides  for  the  election  of  men  on  national  issues,  unifies  the 


160      AN   INTRODUCTION   TO  THE   STUDY   OF  GOVERNMENT 

various  branches  of  government,  and  assures  the  actual  execu- 
tive of  adequate  legislative  support  for  all  ordinary  business  of 
government.  When  great  crises  arise  and  the  ministry  loses 
the  support  of  its  party  in  Parliament,  it  resigns  to  make  way 
for  a  ministry  of  what  was  the  opposition,  or  it  has  Parliament 
dissolved  and  a  new  election  ordered  in  the  hope  that  a  new 
election  may  prove  that  a  majority  of  the  electorate  favors  its 
policy.  In  the  United  States  the  elected  chief  executive  is 
allowed  to  choose  his  own  cabinet,  the  members  of  which  are,  of 
course,  of  political  convictions  similar  to  his  own.  Thus  it  is 
insured  that  the  main  departments  of  the  government  will  be 
carried  on  in  accordance  with  one  political  policy.  Further- 
more, the  chief  executive  will  commonly  find  a  majority  of  the 
members  of  the  legislature  of  the  same  political  party  as  himself, 
thus  insuring  a  cordial  cooperation  between  the  executive  and 
legislative  branches  of  the  government.  Even  if  his  party  is  in 
the  minority,  he  will  have  a  body  of  considerable  numbers  to 
support  his  policies  in  the  legislature,  and  the  force  of  public 
opinion  is  such  that  under  such  circumstances  the  majority 
party  will  almost  always  go  halfway  to  meet  the  wishes  of 
the  chief  executive.  Thus,  in  the  United  States,  the  political 
party  system  serves  to  unify  the  various  branches  and  de- 
partments, to  create  the  connection  between  them  necessary 
for  the  efficient  functioning  of  government. 

In  the  relatively  early  days  of  democracy,  when  it  became 
evident  that  political  parties  were  the  inevitable  agencies  by 
Necessity  which  the  popular  will  was  to  be  made  known,  mem- 
fororgani-  bers  of  these  parties  saw  the  value  of  efficient  or- 
ganization to  accomplish  their  purposes.  The  more 
important  the  share  the  parties  were  to  take  in  the  government, 
the  more  necessary  the  organization. 

Organization  at  the  present  day  is  recognized  as  inevitable. 
Where  the  state  is  vast  in  extent,  where  the  number  of  offices 
under  the  control  of  the  electorate  is  great,  where  the  separation 
between  the  branches  of  government  is  sharply  drawn  and  only 
to  be  bridged  by  the  party  allegiance,  in  such  a  state  the  political 


POLITICAL  PARTIES  161 

party  can  serve  great  ends,  both  for  the  state  and  for  itself,  by 
careful  organization.  These  are  the  conditions  to  be  noted 
in  the  United  States,  and,  in  consequence,  it  is  in  this  country 
that  party  organization  has  most  fully  developed.  In  England, 
a  relatively  small  country  with  comparatively  few  elective  offices 
outside  of  the  parliamentary  seats,  party  organization  did  not 
begin  so  early  and  has  not  progressed  so  far.  In  recent  times, 
however,  political  leaders  have  taken  a  leaf  from  American 
experience,  and  to-day  each  of  the  two  great  parties  has  a 
central  committee  with  headquarters  in  London  and  hundreds  of 
local  committees  in  election  districts  throughout  the  country. 
In  continental  states  national  party  organization  is  practically 
unknown.  Candidates  often  conduct  a  personal  rather  than  a 
party  canvass,  and  seek  election  upon  local  issues  and  personal 
reputation  rather  than  upon  national  issues  and  national  party 
affiliations. 

The  primary  purpose  of  party  organization  is  to  nominate 
and  elect  party  candidates.     The  definition  of  a  political  party 
was  :  A  political  party  is  a  body  of  persons  organized  p^^^  Of 
to  support  and  further  certain  public  policies  and  organiza- 
principles  of  government.     To  further  its  policies  a  tlon' 
party  must  elect  to  office  men  who  believe  in  such  policies ;  an  effi- 
cient organization  will  add  much  to  a  party's  chances  of  success  in 
thus  electing  its  sympathizers.     This  desire  to  elect  its  partisans 
and  thus  influence  the  government  is  the  source  of  the  complex 
and  efficient  organization  of  the  political  party  in  the  United 
States. 

How  does  the  organization  proceed  in  its  effort  to  punctions  Of 

win  elections  ?  organiza- 

First,  it  educates  the  voters.  It  presents  the  * 
national  issues  to  the  people,  instructs  them  with  regard  to  the 
arguments  for  or  against  each  question  proposed.  Naturally, 
a  particular  party  emphasizes  its  own  side  of  the  question,  but  a 
voter  is  always  free  to  listen  to  the  speeches  or  to  read  the  articles 
by  men  of  both  parties  and  thus  get  the  arguments  on  each 
side.  This  education  of  the  voter  is  a  service  to  the  party,  on 


162      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

the  one  hand,  and  is  a  service  to  the  state,  on  the  other.  The  in- 
telligence with  which  the  average  voter  casts  his  ballot  on  elec- 
tion day  is  largely  due  to  the  amount  of  education  he  has  gained 
from  the  orators  or  pamphleteers  of  the  political  parties. 

Second,  the  political  party  makes  it  its  business  to  arouse 
and  maintain  the  enthusiasm  of  the  electorate  at  the  time  of  an 
election.  By  meetings,  speeches,  parades,  it  tries  to  inspire 
each  voter  with  enthusiasm  for  its  cause  and  its  candidate. 
Here,  again,  the  party  is  not  only  doing  itself  but  doing  the 
state  a  favor.  The  success  of  democracy  depends  upon  the 
accuracy  with  which  the  public  will  is  ascertained.  In  so  far  as 
the  political  party  inspires  men  to  go  to  the  polls  and  register 
their  will,  they  perform  a  real  service  to  the  state. 

Third,  the  political  party  seeks  to  attract  to  its  membership 
the  new  voters.  Each  year>  with  the  coming  of  age  or  the 
attainment  of  citizenship,  an  appreciable  number  of  new  mem- 
bers is  added  to  the  electorate.  Each  political  organization 
puts  forth  efforts  to  enroll  these  new  voters  under  its  standard. 

Thus  the  political  party  instructs  the  electorate,  inspires  the 
electorate  with  enthusiasm,  and  proselytes  among  the  members 
of  the  electorate,  all  with  the  fundamental  end  in  view  of  electing 
its  candidates  to  office  and  thus  controlling  the  government. 

In  completeness  and  efficiency  of  organization  the  political 
Organiza-  parties  of  the  United  States  excel  those  of  any 
tion  most  other  state.  In  general,  the  system  may  be  likened 

complete  in  ,  .  ,       ,    '       ,  ,      . 

United  to  a  huge  pyramid  whose  base  is  composed  of  the 
states.  numerous  "  primaries  "  and  whose  apex  is  the  "na- 
tional convention." 

The  primary  is  a  meeting  open  to  all  the  qualified  voters 
Character-  °^  a  sPecified  political  party  in  the  smallest  sub- 
istics  of  or-  division  of  the  state  (as  the  district,  county,  or 

ganization. 


(1)  nominate  the  candidates  of  the  party  for  offices  in  the 
district  ; 

(2)  choose  a  standing  committee  to  manage  the  campaign 
for  the  district  ;  and 


POLITICAL   PARTIES  163 

(3)  select  delegates  to  the  party  meetings  appointed  for 
the  larger  area  of  which  the  district  is  a  subdivision. 

The  delegates  from  the  primaries  meet  in  a  convention  of  a 
larger  area,  as  a  congressional  district,  and  proceed  to 

(1)  nominate  party  candidates  for  offices  in  this  larger  area ; 

(2)  appoint  a  committee  to  manage  the  campaign  for  this 
larger  area;  and 

(3)  select  delegates  to  the  state  (commonwealth)  convention 
of  the  party. 

The  state  (commonwealth)  convention  in  turn  meets  to 

(1)  nominate  candidates  for  offices  in  the  commonwealth,  as 
governor,  lieutenant  governor,  etc. ; 

(2)  appoint  a  committee  to  take  charge  of  the  state  (common- 
wealth) campaign;  and 

(3)  select  (once  in  each  four-year  period)  delegates  to  the 
national  convention. 

The  national  convention,  the  apex  of  the  system,  meets  to 
draw  up  a  declaration  of  policies  and  principles  (platform), 
to  nominate  candidates  for  President  and  Vice  President,  and 
to  choose  a  committee  (the  national  committee)  to  superintend 
the  national  campaign.  This  national  committee  consists  of 
fifty-one  persons,  one  for  each  state  and  territory  and  one  for 
the  District  of  Columbia,  the  members  being  proposed  to  the 
convention  by  the  separate  state  and  territorial  delegations. 

The  above  method  is  simple  and  provides  a  theoretically 
ideal  method  whereby  the  will  of  the  rank  and  file  of  the  party 
shall  be  carried  out.  From  the  primary  up  to  the  national 
convention  of  the  party  each  gradation  of  meeting  is  dependent 
upon  and  linked  with  each  other  gradation. 

It  will  be  at  once  noted  that  the  most  important  duty  of 
the  primaries  and  conventions  is  the  duty  of  nomination. 
Each  party's  primaries  and  conventions  thus  deter-  Domination 
mine  whom  they  consider  to  be  best  fitted  to  carry  by  party  or- 
on  the  government.  In  other  words,  the  party  or-  £amzation- 
ganizations  completely  control  the  selection  of  candidates  for 
the  various  governmental  offices. 


164      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

This  method  of  selection,  so  familiar  to  us,  is  a  new  develop- 
ment in  politics.  In  England,  until  the  present  generation 
(when  the  party  system  as  it  exists  in  the  United  States  is 
becoming  installed),  candidates  commonly  offered  themselves 
for  election,  asking  for  support  on  the  basis  of  merit  or  personal 
position  in  the  community.  Such  is  the  practice  in  most  of 
the  democratic  states  on  the  continent  now.  Again,  candidates 
have  been  put  before  the  electorate  by  a  group  of  men  prominent 
in  a  community,  acting  secretly  or  openly  in  advocating  their 
election.  Such  has  been  the  practice  in  parts  of  England  and 
Scotland,  such  is  the  practice  now  in  districts  of  France,  and, 
previous  to  the  country-wide  development  of  the  party  system, 
such  was  the  practice  in  many  communities  of  the  United  States. 
In  the  United  States  at  present,  however,  public  opinion 
condemns  the  practice  of  having  a  candidate  proposed  by  a 
group  of  the  electorate,  being  suspicious  of  the  motives  behind 
the  candidacy,  and  commonly  looks  upon  the  man  as  presump- 
tuous who  without  previous  support  declares  himself  a  candidate. 
The  people  in  this  country  feel  that  it  is  more  truly  democratic 
for  them  to  pick  out  personally  the  candidates  for  office.  The 
organization  of  the  political  parties  is  theoretically  such  as 
to  give  each  member  of  the  electorate  an  opportunity  to  have  a 
voice  in  the  selection  of  such  candidates.  After  a  candidate 
is  selected,  he  becomes  the  representative  of  his  party  and  is 
entitled  to  feel  that  he  has  the  united  support  of  the  members 
of  that  party.  Such,  briefly  outlined,  is  the  theory  whereby  the 
nomination  of  candidates  by  the  political  party  or- 
ganiz&tion  is  accepted  by  the  electorate  as  a  whole 
of  primaries  in  the  United  States. 

out  fluT*8  ^  *ke  party  primaries  are  openly  and  fairly  con- 
functions  of  ducted  and  each  voter  of  the  party  does  his  share  in 
ganiza°tion  ^e  selec^ion  of  candidates,  committee,  and  dele- 
gates, it  is  certain  that  the  candidates,  committee, 
and  delegates  will  be  truly  representative  of  the  party  of  the 
district,  county,  or  precinct.  It  is  certain  also  that  each  con- 
vention of  the  larger  areas  will  likewise  be  truly  representative 


POLITICAL   PARTIES  165 

of  the  will  of  the  party  majority.  The  whole  system  relies  for 
its  truly  representative  nature  upon  the  character  of  the 
primaries. 

Originally  the  control  and  operation  of  the  primaries  was  left 
entirely  in  the  hands  of  the  political  parties  on  the  theory  that 
the  state  or  the  commonwealth  had  no  right  to  Former  evUs 
dictate  how  the  parties  should  choose  their  candi-  in  system- 
dates,  but  such  grave  abuses  arose  that  a  reform  was  necessary. 
Experience  proved  that  in  many  districts,  especially  those  of 
the  cities,  the  voters  of  the  party  were  too  indifferent  to  attend 
the  primaries.  Thus  the  opportunity  was  given  to  a  class  of 
professional  politicians  and  their  followers  to  control  these 
primaries,  the  key  to  the  whole  system.  The  primaries,  being 
self-constituted  bodies  able  to  make  their  own  rules  for  admis- 
sion and  procedure,  rapidly  fell  under  the  complete  control  of  a 
small  clique  of  politicians  who  operated  them  to  their  own  ad- 
vantage. '  No  such  thing  as  a  popular  selection  of  candidates, 
committee,  and  delegates  existed.  This  process  of  nomination 
consisted  in  the  preparation  of  a  list  of  names  (" slate")  by  the 
district  boss  and  its  immediate  adoption  by  his  hangers-on. 
The  best  citizens  were  repulsed  by  the  nature  of  the  proceedings 
and  by  the  character  of  the  leaders,  so  that  they  remained 
away  from  the  primaries  in  ever  greater  numbers.  Responsible 
and  efficient  men  refused  to  accept  office  at  the  dictation  of  the 
professional  politician  and  boss,  leaving  the  offices  to  be  filled 
by  unscrupulous  men  of  little  ability,  willing  to  repay  by  ap- 
pointments, contracts,  and  the  like  the  clique  that  had  put 
them  in  office.  Thus  was  created  the  political  ring,  an  exclusive 
combination  of  politicians  to  traffic  in  offices  and  their  emolu- 
ments, and  hence  resulted  a  large  proportion  of  the  graft  evil. 

The  situation  as  described  above  was  by  no  means  universal, 
but  did  exist  to  a  greater  or  less  extent  in  most  of  the  good- 
sized  cities  of  the  country.  It  became  common  enough  to 
arouse  a  widespread  demand  for  reform. 

The  first  step  toward  reform  was  taken  when  the  common- 
wealths, abandoning  the  theory  that  the  parties'  methods  of 


166      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

nomination  were  of  no  public  concern,  one  after  another  passed 
laws  regulating  the  primaries.  The  purpose  of  these  laws  was 
to  insure  a  fair  and  open  primary  in  which  the  can- 
didate  selected  was  the  free  choice  of  the  members 


primaries  to  of  the  party.  All  of  the  commonwealths  now  have 
primary  laws,  usually  providing  for  the  dates  of  the 
primary  elections,  for  rules  similar  to  those  which  govern 
regular  elections,  for  the  method  of  nominating  candidates  and 
delegates,  and  for  regular  ballots  printed  at  public  cost.  In 
general,  practically  the  same  measures  are  now  taken  to  safe- 
guard the  primaries  as  are  taken  to  safeguard  the  elections. 

With  state  regulation  of  the  primaries  and  the  removal  of 
the  most  glaring  abuses  came  a  feeling  on  the  part  of  the  voters 
Direct  nomi-  at  large  that  the  conventions  of  the  larger  units 
nations.  were  not  all  that  they  should  be.  The  voters  argued 
logically  that  if  they  were  competent  to  choose  delegates  to  the 
conventions,  they  were  also  competent  to  do  the  chief  work 
of  those  delegates,  namely,  the  nominating  of  the  party  candi- 
dates for  offices  in  the  larger  districts.  As  a  result  of  this  argu- 
ment came  the  introduction  of  a  system  of  direct  nominations 
or  direct  primaries. 

Under  the  direct  primary  or  direct  nomination  system  the 
members  of  the  party,  instead  of  selecting  party  delegates  for 
a  convention,  themselves  vote  for  the  candidates  for  the 
various  offices  in  precinct,  district,  and  commonwealth.  The 
direct-primary  or  direct-nomination  movement  has  spread 
rapidly,  especially  in  the  West  and  South.  It  has  operated 
in  some  commonwealths  to  do  away  entirely  with  the  con- 
vention and  that  system  of  nomination.  In  other  common- 
wealths the  convention  has  been  retained,  but  its  functions  are 
much  limited. 

Another  method  of  insuring  to  the  electorate  its  choice  in 
Nomina-  ^e  mat^er  of  candidates  is  the  method  of  nomination 
tion  by  by  petition.  In  a  number  of  commonwealths  the  laws 
petition.  provide  that  a  specified  number  of  voters  may,  by 
signing  a  nomination  paper  or  petition  paper,  constitute  the 


POLITICAL  PARTIES  167 

person  named  in  such  paper  a  candidate  for  an  office  designated. 
Such  procedure  is  in  most  cases  intended  to  placate  the  in- 
dependents, those  who  refuse  t6  declare  their  allegiance  to 
any  political  party,  and  those  who  disapprove  of  the  existence 
and  operations  of  organized  political  parties.  This  method  of 
nomination  is  often  used  by  candidates  who  have  been  disap- 
pointed in  the  primaries  and  who  believe  that  a  recourse  to  the 
whole  electorate  will  elect  them. 

Only  one  reform  will  insure  a  thorough  and  beneficial  change 
in  the  system,  however,  and  that  is  a  reform  that  is  needed 
in  all  democratic  countries  to-day.  The  electorate  . 

must  be  further  aroused  to  a  sense  of  its  duties  and  true  and 


responsibilities.  No  system  can  be  devised  which 
will  operate  without  the  cooperation  of  the  elec- 
torate. State  regulation  will  not  make  the  electorate  attend 
the  primaries,  and  direct  nominations  will  be  circumvented  by 
the  professional  politicians  and  their  allies  if  the  mass  of  the 
electorate  neglects  to  go  to  the  polls.  The  indifference  of  the 
electorate  is  the  root  of  the  evils  of  the  system.  Reform  waves 
sweep  the  country  at  times  and  show  what  an  awakened  elec- 
torate can  accomplish,  but  reform  waves  are  the  exception. 
The  class  of  professional  politicians,  always  alert  to  the  opportu- 
nities afforded  by  the  system  and  concentrating  all  attention  on 
getting  in  controlling  offices,  continue  even  under  the  various 
regulations  that  have  been  introduced  to  use  the  primaries  to 
achieve  their  ends.  "Politics"  and  "politician"  have  come  to 
have  an  evil  significance  which  ought  by  no  means  to  be  at- 
tached to  them.  When  the  functions  of  the  electorate  are 
understood  and  regularly  and  intelligently  exercised,  we  shall 
soon  see  the  brood  of  petty  politicians  swept  out  of  office  and 
men  of  proved  capacity  called  to  places  of  responsibility  and 
service  in  the  state. 


Chap.  VIH.    Statistics  and  Illustrative  Citations 

1 
POLITICAL  PARTIES  IN  MODERN  STATES 


STATE 

PARTIES  REPRESENTED  IN 
UPPER  HOUSE 

MEMBERS 
ELECTED 

PARTIES  REPRESENTED  IN 
LOWER  HOUSE 

NUMBER 
ELECTED 
(1912) 

France 

Radical  and 

Democratic  "Left" 

73 

Radical  Socialist 

156 

Radical  "Left" 

113 

Republican 

55 

Independent 

25 

Independents 

19 

Progressive  Republican 

76 

Republican  Unionist 

58 

Radical  Socialist 

148 

Right  (various  shades  of 

Republican  Socialist 

32 

opposition) 

19 

Socialist 

74 

307 

Liberal 

32 

f  Nationalist   ] 

Right    \  Royalist         [ 

19 

I  Bonapartist  J 

592 

Germany 

(Bundesrath  is  wholly 

Center 

90 

appointive) 

Conservative 

45 

National  Liberal 

44 

Social  Democrat 

110 

Radicals  (and 

moderate  Radicals) 

41 

Poles 

18 

Anti-Semitic 

11 

Various 

38 

397 

Great 

(Membership  chiefly 

f  Liberal 

272 

Britain 

hereditary) 

Ministerial      \  Labor 

42 

supporters   I  Nationalist 

84 

1910                       Totai 

398 

Opposition   /Conserv.ative 
I    and  Unionist 

272 

Total 

272 

United 

Democratic 

51 

Democratic 

290 

States 

Republican 

_45 

Republican 

127 

96 

Progressive 

18 

435 

168 


POLITICAL   PARTIES 


169 


(a) 

PRIMARY  ELECTIONS  ACT.      MICHIGAN,  JUNE  2,    1909 


The  people  of  the  State  of  Michigan  enact 

SECTION  1.  Whenever  any  primary  election  shall 
be  held  in  this  State  or  in  any  city,  county  or  dis- 
trict in  this  State,  pursuant  to  the  provisions  of 
this  act,  the  nomination  of  candidates  for  the  offices 
herein  named,  by  each  political  party,  shall  be  made 
by  direct  vote  of  the  enrolled  voters  of  such  political 
party  in  the  State  or  in  any  district,  county,  or  city 
in  this  State,  as  the  case  may  be,  in  the  manner 
hereinafter  provided. 

SEC.  2.  All  primary  elections  shall,  except  as 
herein  otherwise  provided,  be  conducted  and  regu- 
lated as  near  as  may  be  in  every  particular  as  pre- 
scribed by  law  for  the  regulation  and  conduct  of 
general  elections.  The  provisions  of  the  general 
election  law  shall  apply  to  primary  elections  with 
respect  to  the  giving  of  notices  of  enrollment  and 
election,  in  fixing  places  for  holding  such  elections, 
providing  the  ballot  boxes  with  the  necessary  equip- 
ment and  supplies,  and  all  officers  required  to  per- 
form similar  duties  under  the  general  election  law 
shall  be  required  to  perform  such  duties  under  this 
act,  with  like  power  and  compensation.  All  ex- 
penses of  primary  elections  shall  be  defrayed  from 
the  same  funds  from  which  are  defrayed  the  expenses 
of  an  election. 

SEC.  3.  The  words  "primary"  or  "primary  elec- 
tion," as  used  in  this  act,  shall  be  construed  to  mean 
an  election  for  the  purpose  of  deciding  by  ballot  who 
shall  be  the  nominees  of  political  parties  for  the 
offices  named  in  this  act  or  for  the  election  by  ballot 
of  delegates  to  political  conventions.  The  words 
"qualified  elector"  shall  be  construed  to  mean  an 
elector  who  is  qualified  under  the  general  election  law, 
to  vote  for  a  member  of  the  legislature  in  this  State. 

SEC.  4.  No  person  shall  be  permitted  to  vote  at 
any  primary  election  held  in  this  State  unless  he  shall 
have  been  enrolled,  in  the  manner  herein  provided, 


When  can- 
didates 
nominated 
by  direct 
vote. 


Primary 
elections, 
how  con- 
ducted, etc. 

Provisions 
applicable. 


Expenses, 
how  de- 
frayed. 


"Primary, 
term  de- 
nned. 


Voter  must 
be  enrolled. 


170      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 


When 
voters  to 
become  en- 
rolled. 


Proviso, 
cities. 


Change  of 
party  affil- 
iation: 


General 
primary 
election, 
when  held, 
officers,  etc. 


Congress- 
man, nomi- 
nation of. 


State  sena- 
tor. 


as  a  member  of  a  particular  political  party,  except  in 
cases  of  new  political  parties  as  hereinafter  provided. 
The  voters  in  the  various  political  parties  shall  be 
afforded  an  opportunity  to  become  enrolled  voters 
of  the  particular  political  party  with  which  they 
are  affiliated  on  the  first  Monday  of  April  preced- 
ing the  September  primary  election,  whether  they  be 
registered  or  not :  Provided,  That  in  the  year  nine- 
teen hundred  ten,  in  cities  operating  under  the  di- 
rect nomination  system  having  an  election  in  April, 
such  opportunity  to  enroll  shall  be  afforded,  also, 
on  the  second  Monday  of  January.  It  shall  not  be 
necessary  for  the  electors  who  were  enrolled  under 
any  previous  act  to  again  enroll  under  the  provisions 
of  this  act.  .  .  . 

SEC.  11.  Whenever  an  enrolled  voter  has  changed 
his  party  affiliation  and  desires  to  be  enrolled  as  a 
member  of  another  political  party,  he  may  person- 
ally make  application  only  on  enrollment  day  for  re- 
enrollment  to  the  enrollment  board,  and  said  board 
shall  thereupon  re-enroll  the  name  of  said  enrolled 
voter,  and  at  the  same  time  draw  a  pen  mark  through 
the  name  of  said  enrolled  voter  as  previously  enrolled 
and  opposite  said  name  as  previously  enrolled,  shall 
write  the  word  "re-enrolled"  and  the  date  of  said 
enrollment.  .  .  . 

SEC.  16.  A  general  primary  election,  for  all  po- 
litical parties,  shall  be  held  in  every  election  pre- 
cinct in  this  State  on  the  first  Tuesday  after  the 
first  Monday  of  September  preceding  every  general 
November  election,  at  which  time  the  enrolled  voters 
of  each  political  party  shall  vote  for  party  candidates 
for  the  office  of  Governor,  Lieutenant  Governor  and 
United  States  Senator :  Provided,  That  no  nomina- 
tion for  the  office  of  United  States  Senator  shall  be 
made  unless  such  official  is  to  be  elected  at  the  next 
session  of  the  legislature. 

SEC.  17.  In  every  congressional  district,  in  this 
State  there  shall  be  nominated  at  the  said  September 
primary  election,  by  direct  vote  of  the  enrolled  voters 
of  each  political  party  within  such  district,  a  party 
candidate  for  representative  in  Congress.  In  every 
senatorial  district  in  this  State  there  shall  be  nomi- 


POLITICAL  PARTIES  171 

nated  at  the  said  primary  election,  by  direct  vote 
of  the  enrolled  voters  of  each  political  party  within 
such  district,  a  party  candidate  for  State  senator. 
In  every  representative  district  in  this  State  there  Represen- 
shall  be  nominated  at  the  said  primary  election,  by  tatives. 
direct  vote  of  the  enrolled  voters,  of  each  political 
party  within  such  district,  a  party  candidate  or  can- 
didates as  the  case  may  be,  for  representative  in 
the  State  legislature.  In  every  county  in  this  State  County 
where  nominations  are  made  by  direct  vote  there  officei>s- 
shall  be  nominated  at  the  said  primary  election  by 
direct  vote  of  the  enrolled  voters  of  each  political 
party  within  such  county,  party  candidates  for 
county  offices  to  be  voted  for  at  the  November  elec- 
tion following.  In  every  city  of  the  State  having  a  City 
population  of  seventy  thousand  or  more,  there  shall  officers, 
be  nominated  at  said  September  primary  election 
or  on  the  third  Tuesday  preceding  any  April  election, 
whenever  the  city  election  in  said  cities  is  held  in 
April,  by 'direct  vote  of  the  enrolled  voters  of  each 
political  party  within  such  city,  party  candidates  for 
city  offices.  In  any  city  in  this  State  having  a  popu- 
lation of  less  than  seventy  thousand  in  which  the 
voters  have  decided  in  accordance  with  the  provi- 
sions of  this  act,  in  favor  of  direct  nominations  of 
party  candidates  for  city  offices,  when  such  offices 
are  to  be  voted  for  at  the  November  election  follow- 
ing, there  shall  be  nominated  at  the  said  primary 
election  by  direct  vote  of  the  enrolled  voters  of  each 
political  party  within  such  city,  party  candidates  for 
city  offices. 

SEC.  18.   There  shall  also  be  elected  at  the  Septem-  Delegates 
ber  primary,  by  direct  vote  of  the  enrolled  voters  of  to  c°unty 
each  political  party  in  said  county,  as  many  delegates  conventlon- 
in  each  township,  ward  or  precinct,  as  the  case  may 
be,  as  such  political  party  in  such  township,  ward  or 
precinct  shall  be  entitled  to  by  the  call  issued  by  the 
county  committee  of  such  political  party  for  the 
county  convention  thereafter  to  be  held  by  such 
political  party  within  said  county  in  that  year  for  the 
purpose  of  electing  delegates  to  the  State  convention 
called  for  the  purpose  of  nominating  candidates  for 
State  offices.     In  case  of  any  vacancy  in  any  delega-  Vacancy. 


172      AN   INTRODUCTION   TO   THE   STUDY  OF  GOVERNMENT 


Number  of 
delegates, 
who  to 
certify. 


Names  not 
to  be 

printed  on 
ballot. 


Signatures 
required  for 
certain 
officers. 


Nomination 
petitions, 
form  of. 


tion  from  any  election  precinct,  township,  or  ward, 
to  the  county  convention,  such  vacancy  shall  be 
filled  by  the  delegates  present  from  the  ward  or 
township  in  which  the  vacancy  occurs.  The  State 
central  committee  of  each  political  party  shall,  at 
least  thirty  days  before  the  September  primary 
herein  provided  for,  certify  to  the  board  of  election 
commissioners  of  each  county  and  to  the  chairman 
of  the  county  committee  of  such  party,  the  number  of 
delegates  to  which  such  county  shall  be  entitled  in 
the  State  convention  of  such  party,  and  the  said 
State  central  committee  shall  apportion  such  dele- 
gates to  the  several  counties  in  proportion  and  ac- 
cording to  the  number  of  votes  cast  for  the  candi- 
dates of  such  party  for  Secretary  of  State  in  each 
of  said  counties  respectively  at  the  last  preceding 
November  election.  The  name  of  any  candidate 
for  delegate  to  the  county  convention  shall  not  be 
printed  upon  the  official  primary  election  ballot,  but 
one  or  more  of  such  names  may  be  placed  on  such 
ballot  by  printed  slips  pasted  thereon  by  the 
voter.  .  .  . 

SEC.  25.  To  obtain  the  printing  of  the  name  of 
any  candidate  of  any  political  party  for  United  States 
Senator  or  for  Governor  or  Lieutenant  Governor 
upon  the  official  ballots  of  such  political  party  for  any 
primary  election  held  in  the  State,  pursuant  to  the 
provisions  of  this  act,  there  shall  be  filed  with  the 
Secretary  of  State  nomination  petitions,  signed  by  a 
number  of  enrolled  voters  residing  in  the  State  and 
who  are  enrolled  in  the  party  enrollment  of  said  party, 
equal  to  not  less  than  two  per  centum  nor  more  than 
four  per  centum  of  the  number  of  votes  that  such 
party  cast  for  Secretary  of  State  at  the  last  preced- 
ing November  election.1 

SEC.  29.  All  nomination  petitions  shall  be  in  the 
following  form : 

We,   the  undersigned,   enrolled  voters   (or  if  a 

new  party,  qualified  electors)  of  the 

party  of  the  city  of 

or  the  township  of  , 

1  In  following  sections,  similar  provisions  are  incorporated  for 
nominations  to  state,  city,  county,  and  district  offices. 


POLITICAL   PARTIES 


173 


in  the  county  of and 

State  of  Michigan,  hereby  nominate 

,  who  resides  at  No 

Street,  city  of ,  or  in  the 

township  of ,  in  the 

county  of as  a  candidate 

of  the  party  for  the  of- 
fice of  ,  to  be  voted  for  at 

the  primary  election  to  be  held  on  the 

day  of , 

as  representing  the  principles  of  said  party,  and  we 
further  declare  that  we  intend  to  support  the  politi- 
cal party  named  herein. 

Name.          Residence.          Street  number  (in  cities 

having  street  nos.). 
Date  of  signing. 


SEC.  32.'  All  primary  elections  for  the  nomina- 
tion of  party  candidates  for  office  shall  be  held  by 
election  precincts  the  same  as  general  elections  are 
held,  and  the  polls  thereof  shall  be  kept  open  in  the 
respective  precincts  for  the  same  length  of  time : 
Provided,  That  in  any  city  of  five  thousand  popula- 
tion or  over,  the  polls  of  the  primary  election  shall 
be  kept  open  until  eight  o'clock  P.M.  standard  time, 
and  in  cities  having  a  population  of  two  hundred 
thousand  or  more  the  polls  shall  be  kept  open  until 
ten  o'clock  P.M.,  standard  time :  Provided  further, 
That  the  township  board  of  any  township  or  the 
common  council  of  any  city  of  less  than  five  thousand 
population  may  direct  that  the  polls  be  held  open 
until  eight  o'clock  P.M.,  standard  time.  .  .  . 

SEC.  39.  The  candidate  of  each  political  party 
for  nomination  for  any  office  who  receives  the  great- 
est number  of  votes  cast  for  candidates  for  any  such 
office  as  set  forth  in  the  returns  or  as  determined 
by  the  board  of  canvassers  on  the  recount  by  it  of 
said  ballots,  shall  be  declared  the  nominee  of  that 
political  party  for  said  office  at  the  next  ensuing 
November  election,  or  at  the  next  city  election,  or  at 
the  next  election  for  United  States  Senator,  as  the 


Primary 
elections, 
how  held, 
etc. 


Proviso, 

certain 

cities. 


Further 
proviso. 


Who  de- 
clared 
nominee. 


174      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


Proviso, 

United 

States 

Senator, 

etc. 


State  con- 
vention, 
when  held, 
etc. 


case  may  be,  and  the  board  of  canvassers  shall 
forthwith  certify  such  nominations  to  the  respective 
boards  of  election  commissioners  affected  thereby : 
Provided,  That  in  the  case  of  a  candidate  for  the 
office  of  United  States  Senator,  the  Board  of  State 
Canvassers  shall  forthwith  certify  the  result  of  the 
primary  election  to  the  Secretary  of  State,  and 
the  Secretary  of  State  shall  certify  said  result  to  the 
next  succeeding  legislature  on  the  first  day  of  the 
session.  .  .  . 

SEC.  43.  The  State  convention  of  all  political 
parties  for  the  nomination  of  candidates  for  State  of- 
fices and  the  selection  of  State  central  committees, 
if  such  committees  have  not  been  selected  by  previ- 
ous conventions  held  during  the  same  year,  shall  be 
held  within  forty  days  after  the  September  primary, 
but  not  less  than  ten  days  after  the  day  appointed 
for  the  meeting  of  the  Board  of  State  Canvassers 
for  the  purpose  of  canvassing  the  primary  election 
returns  mentioned  in  this  act.  The  particular  day 
and  the  time  and  place  of  meeting  shall  be  designated 
by  the  State  central  committees  of  the  various  politi- 
cal parties  in  the  calls  for  said  State  conventions, 
which  calls  shall  be  issued  at  least  thirty  days  prior 
to  the  first  Wednesday  in  September  preceding  a 
November  election.  , 


(6) 


PRIMARY    ELECTIONS 


Presidential  primaries  were  held   in  1912  in  the  following 
commonwealths : 


California 

Georgia 

Illinois 

Maryland 

Massachusetts 

Missouri 

Nebraska 


New  Jersey 
New  York 
North  Dakota 
Ohio 
Oregon 
Pennsylvania 
South  Dakota 


Wisconsin 


POLITICAL   PARTIES  175 

State  primaries  (for  governor,  United  States  senators,  United 
States  congressmen)  were  held  in  1912  in  the  following  com- 
monwealths : 

Georgia  Missouri 

Illinois  New  Hampshire 

Kansas  New  York 

Kentucky  Washington 

Louisiana  Wisconsin 

Michigan  Wyoming 

(1913)  New  Jersey 


CHAPTER  IX 
LOCAL   GOVERNMENT 

IN  the  preceding  chapters  we  have  dealt  especially  with  the 
central  government  of  a  state.  In  none  but  the  smallest  states, 
Local  gov-  however,  as  the  republic  of  San  Marino,  does  this 
ernment.  central  government  directly  administer  the  affairs 
of  local  areas.  In  states  of  any  appreciable  size  the  details  of 
government  of  portions  of  the  area  of  the  state  are  adminis- 
tered by  local  governing  bodies.  This  chapter  deals  with  the 
government  of  these  local  areas. 

Considered  from  the  viewpoint  of  their  systems 
of  local          of  local  government,  the  prominent  states  may  be 
govern-          divided  into  two  main  classes,  (1)  unitary  govern- 
ments and  (2)  federative  governments. 

Unitary  governments  are  distinguished  by  the  fact  that 
all  authority  for  local  officials  in  local  areas  proceeds  from 
Unitary  gov-  and  rests  upon  the  central  government.  Local 
ernments.  governing  officials  and  bodies  are  not  trusted  with 
independent  powers;  their  acts  are  always  subject  to  the 
scrutiny  of  an  agent  or  representative  of  the  central  government 
of  the  state;  their  very  existence  is  in  large  measure  deter- 
minable  by  the  central  government.  New  local  boards  or 
functionaries  may  be  created  by  the  central  government  for 
local  areas  designated  by  that  government,  or  old  local  boards  or 
functionaries  may  be  arbitrarily  abolished  or  displaced.  All 
local  government  is  subject  to  the  will  and  action  of  the  central 
government  of  the  whole  state.  Such  system,  to  be  described 
in  more  detail  later,  is  to  be  noted  in  France,  Italy,  and 
England. 

Federative  governments  are  distinguished  by  the  fact  that  under 

176 


LOCAL  GOVERNMENT  177 

the  constitution  of  the  state  certain  powers  of  independent 
organization  and  action  are  guaranteed  to  the  local  Federative 
governments.     In  their  own  constituted  province,  govem- 
local  governing  bodies  in  a  federative  government  are  ments< 
free  to  act  according  to  their  best  judgment  without  reference 
or  appeal  to  the  central  government.     In  local  affairs,  the  local 
governing  bodies  in  general  jealously  protest  against  any  en- 
croachment on  the  part  of  the  central  government. 

In  a  sense  the  local  governing  bodies  do  not  consider  them- 
selves as  subordinate  bodies  at  all,  but  as  free  and  independent 
governments  operating  without  interference  in  all  local  matters. 
They  are  inclined  to  resent  the  term  local  government  as  ap- 
plied to  them,  because  such  application  implies  a  subordination 
to  the  wider  central  government,  which  subordination  does  not 
under  the  constitution  exist.  They  argue  that  the  same  consti- 
tution which  creates  the  central  government  in  a  federative 
state  guarantees  to  the  local  areas  governmental  rights  forever 
free  from  infringement  or  impairment,  and  hence  in  the  exercise 
of  their  powers  they  are  as  free  and  untrammeled  as  the  central 
government  itself.  This  argument  is  well  based,  and  yet  the 
fact  remains  that  the  local  government  may  be  distinguished  as 
such  by  the  fact  that  it  exercises  control  over  only  a  portion  of 
the  territory  and  people  of  a  state,  whereas  the  central  govern- 
ment exercises  control  over  all  the  territory  and  people  of  a 
state.  However  independent  the  local  government's  powers  as 
guaranteed  by  the  state  constitution,  such  powers  extend  to 
but  a  limited  portion  of  the  state  as  compared  with  the  state- 
wide authority  of  the  central  government. 

Prominent  federative  states  in  which  local  governments  are 
thus  constituted  with  independent  powers  are  Switzerland, 
Germany,  and  the  United  States. 

The  determination  of  the  boundaries  and  extent  of  the  local 
areas  within  a  state  is  (1)   in  unitary  states  com-  AretLB  of 
monly  the  result  of  the  action  of  the  central  govern-  local  gov- 
ment,  and  (2)  in  federative  states  commonly  a  re-  ernment- 
suit  of  historical  evolution. 


178      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

Thus  in  France  the  largest  subdivisions  of  the  state  are  the 
departements,  which  are  territorial  areas  arbitrarily  marked 

out  by  the  central  government  for  administrative 
locaTgov-  convenience.  Thus  likewise  the  arrondissements 
emment  in  and  cantons  in  France  are  arbitrary  divisions.  In 
eraments°V~  England,  boroughs,  urban  or  rural  districts,  sanitary 

districts,  etc.,  may  be  determined  arbitrarily  at  the 
will  of  the  central  government. 

In  federative  governments  the  historical  process  by  which  the 
central  government  evolved  is  shown  by  the  local  areas.  In 
infedera-  Switzerland  each  of  the  cantons  had  a  separate 
tive  govern-  governmental  existence  before  the  union  into  one 

state.  In  Germany  the  mixture  of  kingdoms,  prin- 
cipalities, duchies,  and  free  cities  in  its  local  areas  shows  even 
more  decidedly  from  what  a  heterogeneous  collection  was 
welded  the  German  state.  In  the  United  States  the  thirteen 
colonies  which  revolted  from  England  became  thirteen  common- 
wealths in  the  state,  and  the  commonwealths  which  have  been 
added  since  have  in  many  cases  had  individual  histories  and 
organizations  before  their  admission  to  the  Union. 

The  present  French  system  of  local  government  may  be 
considered  as  typical  of  the  unitary  type.  The  territory  of 

France  is  divided  into  86  departements  for  admin- 
type  system  istrative  purposes.  These  departements  are  sub- 
of  local  gov-  divided  into  arrondissements  (362  in  number  all 

together),  further    subdivided    into   cantons    (2911 

in  number  all  together),  and  further  subdivided 
into  communes  (36,222  in  number  all  together). 

At  the  head  of  each  of  the  86  departements  is  a  prefect,  an 
official  appointed  by  the  president  of  France  upon  the  nomina- 
Thede-  tion  of  the  minister  of  the  interior  in  the  national 
partement.  cabinet.  This  prefect  exercises  a  double  function : 
on  the  one  hand  he  is  the  representative  of  the  central  govern- 
ment of  the  state,  appointed  by  and  responsible  to  the  officials 
of  that  central  government,  and  on  the  other  hand  he  is  at  the 
head  of  the  government  of  the  departement.  In  his  capacity 


LOCAL  GOVERNMENT  179 

as  agent  of  the  central  government  it  devolves  upon  him  to 
supervise  the  execution  of  the  laws  of  the  state,  to  transmit  the 
instructions  and  orders  of  the  central  government  to  his  sub- 
ordinates, and  to  oversee  the  actions  of  such  subordinates.  In 
his  capacity  as  head  of  the  government  of  the  departement 
he  is  the  executive  officer  of  an  elected  general  council  and  has 
extensive  police  powers,  great  authority  in  sanitary  regulations, 
the  nomination  of  various  important  subordinate  officials, 
the  distribution  of  the  amount  of  taxes  proportionally  among 
the  arrondissements,  and  the  charge  of  the  construction  and 
maintenance  of  roads,  railways,  and  canals. 

In  the  exercise  of  these  broad  powers  the  prefect  is  assisted 
on  the  one  hand  by  an  advisory  council,  the  members  of  which 
are  appointed  by  the  president  of  France,  and  on  the  other  hand 
by  a  general  council,  the  members  of  which  are  elected  by 
universal  suffrage  from  the  cantons  (each  canton  contributing 
one  membeV).  The  advisory  council  is  at  the  prefect's  hand  in 
cases  involving  the  central  government;  the  general  council 
acts  as  a  check  upon  the  prefect  in  his  administration  of  the 
government  of  the  departement. 

The  features  of  government  for  the  departement  are  in  the 
main  duplicated  in  the  official  bodies  of  the  arrondissements. 
The  subprefect,  who  is  at  the  head,  is  both  represen-  The  arron- 
tative  of  the  central  government  and  executive  dissement. 
officer  of  the  local  government.  A  district  council,  elected  (like 
the  general  council  of  the  departement}  by  the  cantons,  assists 
him  in  local  matters.  The  chief  business  of  the  local  govern- 
ment is  to  divide  among  the  communes  in  proper  proportion 
the  amount  of  the  direct  taxes  levied  by  the  prefect  and  general 
council  of  the  departement. 

The  canton  is  of  little  importance  for  our  purposes.     It  is  a 
division  made  for  administrative  convenience,  usually  contains 
about  a  dozen  communes,  and  is  the  seat  of  a  justice 
of  the  peace.     Each  canton  sends  one  member  to  the 
district  council  of  the  arrondissement  in  which  it  is  situated, 
and  one  member  to  the  general  council  of  the  departement  in 
which  it  is  situated. 


180      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

The  commune,  the  ultimate  administrative  unit  of  the  French 
system,  duplicates  in  the  main  the  features  of  the  departement. 
The  com-  The  maire,  who  is  at  the  head,  is  on  the  one  hand  a 
mune.  direct  representative  of  the  central  government, 

under  orders  of  the  prefect  of  the  departement,  and  charged 
with  the  duty  of  promulgating  and  executing  the  laws  of 
the  central  government,  and  on  the  other  hand  is  the  executive 
officer  of  the  town  or  city,  in  which  capacity  he  has  authority 
over  the  local  police,  public  works  and  revenue,  acts  as  registrar 
of  births,  deaths,  and  marriages,  and  represents  the  munici- 
pality in  all  ceremonial  occasions.  The  mayor  usually  is 
assisted  by  one  or  more  deputy  mayors.  Both  mayor  and 
deputy  mayors  are  elected  by  the  municipal  council  from 
among  its  own  members. 

The  municipal  council  is  a  body  elected  for  four  years  and  con- 
sisting of  from  10  to  36  members,  according  to  the  size  of  the 
commune.  It  has  wide  powers  in  matters  of  strictly  local  interest. 

Thus  the  typical  system  of  local  government  in  France  re- 
sembles a  series  of  concentric  circles.  The  commune  is  the 
smallest  circle,  around  it  extends  the  canton,  around  the 
canton  extends  the  arrondissement,  around  the  arrondissement 
extends  the  departement,  and  embracing  the  departement  is  the 
central  government.  Through  every  series  of  circles  extends 
the  authority  of  the  central  government,  jealously  guarded  by 
the  agents  of  that  government.  The  general  council  of  a  de- 
partement may  have  its  vote  annulled  by  the  president  of 
France,  and  must  have  its  annual  budget  approved  by  him. 
The  general  council  furthermore  is  much  in  the  power  of  the 
prefect  appointed  by  the  central  government,  for  he  is  the  exec- 
utive head  who  carries  out  its  votes,  signs  all  requisitions  and 
vouchers,  and  prepares  the  budget  and  all  business  submitted 
to  it  for  consideration  and  action.  In  the  lowest  circle  of 
administration  we  find  the  same  facts :  the  maire,  so  far  as  he  is 
agent  of  the  central  government,  is  under  the  control  of  the  pre- 
fect of  the  departement,  can  even  be  suspended  from  office  for 
a  month  by  the  prefect,  for  three  months  by  the  minister  of 


LOCAL  GOVERNMENT  181 

the  interior,  permanently  by  the  president  of  France.  The 
communal  council  has  much  less  power  of  final  action  than 
might  be  thought,  for  on  all  important  matters  (such  as  finan- 
cial measures,  roads,  communal  property,  etc.)  the  approval 
of  a  superior  administrative  official  is  necessary.  Furthermore, 
the  prefect  of  the  departement  has  the  power  to  suspend  the 
council  for  a  month,  and  the  president  of  France  may  dissolve 
it  entirely  and  order  a  new  election.  Local  autonomy,  as  we  are 
familiar  with  it  in  this  country,  is  unknown  in  France.  All 
power  is  concentrated  in  the  central  government. 

The  local  government  system  in  Italy  is  in  the  main  copied 
from  that  in  France.  The  concentric  circles  corresponding 
to  departements,  arrondissements,  cantons,  and 

/      ,,    ,       ,,  .  ,      .     Local  gov- 

communes  are  in   Italy  the    provinces,   circondan,  emment 
mandamenti,  and  communes.    The  officials  in  these  system  in 
various  areas  closely  correspond  to  those  of  similar 
areas  in  France,  but  the  suffrage  is  more  narrowly  restricted 
in  voting  for  members  of  the  bodies  corresponding  to  the  gen- 
eral council  and  communal  council.     Furthermore,  the  syndics 
(French    maires)    of    the    smaller    communes    are    commonly 
appointed  by  the  king  from  among  the  communal  councils. 
The   authority   of   the   central   government   penetrates   each 
degree  of  local  government  in  Italy  as  it  does  in  France. 

England,  however,  though  rightly  classed  with  France  and 
Italy  as  a  unitary  government,  differs  radically  in  the  features 
of  its  local  government.     In  the  general  overhauling  Local  gov_ 
of  institutions,  which  began  with  the  reform  bill  of  ernment 
1832,  local  government  was  reformed.     In  1871  a  inEn«land- 
Local  Government  Board  was  established  as  a  central  super- 
vising body,  and  the  Local  Government  Act  of  1888,  followed 
by  the  similar  and  supplementary  act  of  1894,  framed  the 
system  of  local  government  as  it  exists  to-day. 

Under  the  present  system  the  various  areas  of  local  govern- 
ment are  the  following :    first  grade,  counties  and  _ 
county  boroughs;   second  grade,  rural  districts,  urban  areas. 
districts,  and  boroughs;  third  grade,  parishes. 


182      AN  INTRODUCTION  TO  THE   STUDY  OP  GOVERNMENT 

The  first  division  under  the  central  government  is  com- 
posed of  two  different  kinds  of  units;  namely,  counties  and 
Primary  county  boroughs.  The  counties  may  roughly  be  corn- 
areas,  pared  with  the  French  departements,  but  the  county 
borough  is  unique.  The  county  borough  is  a  city  of  such  size  as 
to  be  granted  the  local  government  of  a  county.1  Territorially,  a 
county  borough  may  be  and  commonly  is  entirely  within  the 
territorial  area  of  a  county,  but  for  purposes  of  local  government 
it  is  not  a  part  of  the  county.  Thus  a  county  may  be  large  in 
extent  but  not  include  the  greater  part  of  the  wealth  and  popu- 
lation within  its  territorial  boundaries,  for  the  reason  that  the 
populous  and  wealthy  sections  are  organized  as  county  boroughs. 
Sixty-one  such  county  boroughs  were  enumerated  in  the  Local 
Government  Act  of  1888,  and  fourteen  have  been  constituted 
since  that  time,  the  total  population  of  these  seventy-five 
county  boroughs  being  now  approximately  11,000,000. 

The  counties  are  further  subdivided  into  rural  districts, 
Secondary  urban  districts,  and  boroughs.  Each  of  these  areas 
areas.  js  under  the  control  of  the  county. 

The  boroughs  are  incorporated  towns,  differing  from  the 
county  boroughs  in  being  to  some  extent  subordinate  to  the 
county  and  in  being  considered  territorially  as  a  part  of  the 
county.  The  boroughs  are  of  great  importance  in  the  English 
system.  The  town  and  city  population  is  constantly  on  the 
increase  at  the  expense  of  the  rural  population,  so  that  at 
present  the  350  boroughs  of  England  and  Wales  contain  one 
half  the  total  population  of  the  kingdom  (outside  of  London). 

The  urban  district  is  commonly  a  borough  on  a  smaller  scale. 
As  the  name  implies,  it  is  a  local  government  area  in  a  somewhat 
thickly  populated  district.  It  differs  from  a  borough  mainly  in 
not  having  a  charter  of  incorporation  granting  a  greater  degree 
of  independence  in  local  matters  and  thus  in  being  more  under 
the  control  of  the  county  organization. 

1  The  term  "  borough  "  in  English  law  is  used  for  a  town  incorporated  for  pur- 
poses of  self-government.  The  word  "  city"  has  no  place  in  English  law  (out- 
side of  the  city  of  London). 


LOCAL  GOVERNMENT 


183 


Rural  districts  are,  as  the  name  implies,  areas  in  which  the 
population  is  more  scanty.  In  these  the  county  authorities 
wield  more  power  than  in  either  the  urban  district  or  the 
borough. 

Rural   districts  are  further   divided  into  parishes.    These 
parishes  are  the  weakest  and  least   active   elements  in  the 
system.     They    are    merely    subdivisions    of    the  Lowest 
rural  districts,  made  for  convenience  in  local  gov-  areas  in 
ernment.  thescale- 

The  following  diagram  may  illustrate  graphically  Diagram  of 
the  various  grades  of  local  government  and  the  areas  show- 
mutual  exclusiveness  of  the  units  in  each  grade :  mg  grades> 

COUNTY  BOROUGH 


COUNTY 


RURAL  DISTRICTS 


PARISHES 

(An  ultimate 
unit  for  local 
government) 


URBAN  DISTRICTS 

(An  ultimate 
unit  for  local 
government) 


BOROUGHS 


(An  ultimate 
unit  for  local 
government) 


(An  ultimate 
unit  for  local 
government) 


The  organization  of  the  government  for  each  of  these  areas 
is  along  the  same  general  lines.  The  government  is  in  the 
hands  of  a  council  composed  of  members  elected  by  a 
wide  popular  suffrage  in  the  area.  The  council  elects 
its  own  executive  head,  but  this  executive  head  has 
no  powers  distinct  from  those  of  other  members  of 
the  council,  and  has  no  extra  salary.  The  headship 
of  the  council  is  thus  to  a  large  extent  an  honorary  office,  the 
holder  of  which  represents  the  area  on  ceremonial  occasions. 
In  most  of  the  various  areas  the  council  also  elects,  usually  from 
among  its  own  members,  aldermen  to  a  number  equal  to  one 


Typical 
local  gov- 
ernment for 
the  various 
areas. 


184      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

third  of  the  council.  Here  again,  however,  except  for  a  su- 
perior dignity  and  a  longer  term  of  office,  the  powers  of  the 
aldermen  do  not  differ  from  those  of  members  of  the  council. 
The  aldermen  form  a  part  of  the  council,  and  vote  and  act  with 
them. 

The  various  councils  exercise  both  legislative  and  executive 
powers  for  their  respective  areas.  Their  powers  and  functions 

differ  naturally  according  to  the  area  which  they 
theWcountii  g°vern-  I*1  general,  the  councils  of  the  various  areas 
and  have  a  certain  control  over  the  finances  by  having  the 

right  to  levy ,  collect,  and  appropriate  taxes  ("rates"), 

over  the  police,  over  highways,  sanitary  arrange- 
ments, municipal  businesses  and  properties,  and  the  like, 
and  over  the  appointments  of  a  number  of  subordinate  officials. 
Their  important  acts  are,  however,  as  will  be  explained,  subject 
to  the  inspection  and  approval  of  authorities  of  the  central 
government. 

Most  of  the  work  of  these  councils  is  done  by  means  of  a 
series  of  committees.  Inasmuch  as  there  is  no  separate  execu- 
tive head  these  committees  act  as  executives  in  their  several 
assigned  fields,  and  the  business  of  the  council  as  a  whole  is 
largely  a  matter  of  accepting  and  approving  the  reports  of  the 
committees.  In  the  county  boroughs  and  the  boroughs 
certain  committees  occupy  the  place  of  managing  directors 
of  huge  businesses,  as  where  the  borough  owns  and  runs  a 
gas  plant,  a  water  works,  a  street  railway  system,  or  the  like. 

The  control  of  the  central  government  over  the  local  govern- 
ing bodies  is  exercised  mainly  through  the  Local  Government 

Board.  The  Local  Government  Board  audits  the 
troi  of  local  accounts  of  all  the  local  authorities,  except  those  of 
govern-  boroughs,  and  can  disallow  any  item  of  expenditure. 

It  can  demand  reports  on  any  subject  connected 
with  its  work,  has  special  powers  in  case  of  epidemic  disease, 
has  an  army  of  inspectors  who  have  the  right  to  be  present  at 
the  meetings  of  local  bodies  (except  borough  councils).  Its 
approval  is  necessary  for  the  raising  of  loans  by  any  local 


LOCAL  GOVERNMENT  185 

body  (including  borough  councils),  for  the  purchase  or  establish- 
ment of  electric  supply  plants,  gas  works,  or  the  like. 

In  addition  to  the  many  and  important  matters  in  which  the 
Local  Government  Board  has  control  over  the  organs  of  local 
government,  a  number  of  other  matters  must  be  referred  to 
authorities  of  the  central  government.  For  example,  in  all 
matters  affecting  police  regulation,  the  Home  Secretary  must 
be  consulted;  for  orders  to  supply  electric  light  or  to  build 
tramways  or  light  railways,  the  Board  of  Trade's  permission 
must  be  gained  ;  to  issue  orders  providing  for  the  suppression 
of  disease  among  cattle,  sheep,  or  other  animals,  the  Board  of 
Agriculture's  approval  must  be  had. 

Thus  the  system,  though  not  so  accurately  symmetrical  as 
that  of  the  French,  has  such  definite  provisions  for  central 
control  that  it  must  be  characterized  as  unitary.  The  au- 
thority of  the  central  government  does  extend  through  the 
various  degrees  of  local  government.  However  free  and  in- 
dependent the  local  authorities  may  seem  in  many  affairs, 
those  decisions  which  affect  most  vitally  the  people  of  the  area 
must  be  sanctioned  by  authorities  of  the  central  government. 

In  federative  governments  the  relations  between  the  govern- 
ments of  the  primary  areas,  i.e.  the  largest  and  most   com- 
prehensive area  next  to  the  state  as  a  whole,  and  the 
central  government  are  very  different  from  the  rela-  tive  sys_ 
tions  between  such  areas  and  the  central  government  tem-   Local 

government 

in  unitary  states.     These  large  areas  are  not  organs  contrasted 


of  the  central  government,  as  the  French  departe- 
ments  and  Italian  provinces  may  be  said  to  be,  and 
they  are  not  in  all  important  matters  of  local  interest 
under  the  control  of  a  branch  of  the  central  government, 
as  are  the  local  areas  in  England;  on  the  contrary,  these 
primary  areas  manage  their  local  affairs,  determine  their 
local  government,  lay  taxes,  incur  indebtedness,  and  make 
appropriations,  free  from  the  interference  of  the  central  govern- 
ment of  the  state. 

Three  states  of  prominence  present  the  federative  type  of 


186      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

local  government :  Switzerland,  Germany,  and  the  United 
Federative  States.  In  all  of  these  the  principle  is  the  same  — 
states.  autonomy  for  the  primary  areas  in  local  affairs.  The 

nature  of  the  primary  areas  and  the  organization  of  the  govern- 
ments in  these  areas,  however,  differ  in  the  various  states. 

The  primary  areas  in  Switzerland  are  the  cantons.     Subject 

to   the   approval   of   the   central   government  —  approval   is 

always  given  where  no  conflict  with  the  national 

areas  in        constitution  is  evident  —  the   cantons  are  free  to 

Switzer-        organize  their  governments  as  they  please  and  to 

amend  their  constitutions  as  they  see  fit. 

Two  varieties  of  organization  are  found.  In  two  of  the 
cantons  (Uri  and  Glarus)  and  four  half-cantons  (the  two  Unter- 
waldens  and  the  two  Appenzells)  the  governing 
ernmenUn  body  is  the  Landsgemeinde,  an  assembly  composed 
the  primary  of  an  the  citizens  of  the  area.  This  assembly  con- 
siders and  passes  or  rejects  bills,  fixes  taxes,  votes 
the  appropriations,  and  elects  the  important  officials.  In 
addition  to  the  Landsgemeinde,  a  council  (the  Landrath  or 
Kantonsrath) ,  elected  by  wide  suffrage  in  the  canton,  administers 
the  ordinary  routine  business,  prepares  bills  for  introduction 
in  the  Landsgemeinde,  votes  smaller  appropriations,  audits 
accounts,  and  appoints  minor  officials.  A  third  body,  the 
administrative  council  (Regierungsrath  or  Standeskommissiori) , 
usually  of  seven  members,  is  elected  directly  by  the  Lands- 
gemeinde and  acts  as  the  executive  head  of  the  canton. 

Thus  in  these  cantons  one  ultimate  body,  composed  of  all 
the  citizens  of  the  canton,  decides  directly  upon  measures  of 
first  importance;  an  elected  council  attends  to  details  of  ad- 
ministration; and  a  small  elected  council  acts  as  executive 
head. 

Of  course  only  a  few  of  the  smallest  cantons  can  have  a 
system  like  the  above,  for  it  is  impossible  in  cantons  with  a 
The  great  large  population  to  have  an  efficient  assembly 
council.  composed  of  all  the  citizens;  most  of  the  cantons 
have  a  single  legislative  chamber  called  the  great  council, 


LOCAL  GOVERNMENT  187 

elected  on  universal  manhood  suffrage  for  a  term  of  three  years 
(in  some  cantons  four  years).  In  several  of  the  chief  cantons 
(Geneva,  Neuchatel,  Ticino,  Zug,  and  Soleure)  a  scheme  of 
proportional  representation  is  in  effect  in  the  elections  of  mem- 
bers of  the  great  council. 

The  duties  of  this  great  council  are  those  of  the  ordinary 
legislative  body :   it  considers  and  passes  laws,  fixes  and  ap- 
portions   taxes,    makes    appropriations,    appoints  The  duties 
a  number  of   officials,  and  has  the  general  super-  of  the  great 
vision  of  the  administration. 

Together  with  this  great  council  exists  a  small  executive 
council,  usually  of  five  or  seven  members,  variously  called 
the  conseil  d'etat,  Kleine  Rath,  or  Regierungsrath.  The  mem- 
bers of  this  council  are  chosen  in  the  majority  of  The  execu- 
cantons  by  the  direct  vote  of  the  people.  Eight  tive  council, 
cantons  have  a  system  by  which  the  members  are  chosen  by 
the  great  council.  The  work  of  this  executive  council  is  divided 
into  separate  departments,  one  member  of  the  council  being 
at  the  head  of  each  department.  Its  duties  are  largely  of  an 
advisory  and  administrative  nature :  it  administers  the  govern- 
ment, renders  reports  and  proposes  measures  to  the  great  council, 
and  consults  with  the  great  council  on  matters  affecting  the 
government.  The  executive  council  has  no  power  to  veto  the 
acts  of  the  great  council  or  to  influence  them  except  by  its 

advice'  Lower  areas 

The  areas  of  local  government  below  the  cantons  of  local  gov- 

are  the  districts  and  the  communes. 

The  chief  official  of  the  district  is  elected  by  popular  vote 
and  represents  the  cantonal  government  in  his  area.  He 
executes  the  laws  of  the  canton  and  carries  out  the  . 

orders  of  the  council.     In  some  cantons  he  is  assisted 
by  an  advisory  council. 

The  commune  is  the  ultimate  unit  of  local  government  area 
and,  as  the  name  implies,  resembles  somewhat  the  French 
town.     The  chief  issues  and  policies  are  commonly  The  com_ 
decided  in  full  public  assembly  of  qualified  citizens. 


188      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

This  assembly  elects  the  chief  officials  and  a  single  executive 
council  of  small  size  to  conduct  current  affairs.  In  some 
communes,  especially  in  French  Switzerland,  the  type  of  the 
cantonal  government  is  more  closely  followed  and  the  com- 
mune has  both  an  executive  council  and  a  larger  communal 
council. 

It  is  worth  while  to  consider  the  local  government  in  Switzer- 
land thus  in  detail,  for  the  reason  that,  in  all  states  to-day  where 

questions  of  government  are  discussed  at  all,  the 
nature  of  government  in  Switzerland,  both  national  and  local, 
Swiss  local  js  cited  as  an  example  of  the  nearest  approach  to  the 

ideal  democracy  in  the  world.  The  Landsgemeinde 
in  the  small  cantons  has  been  especially  praised,  but  it  may 
be  noted  that  in  all  the  cantons  the  system  is  so  arranged 
that  the  government  is  never  out  of  the  control  of  the  electorate. 
Add  to  the  elements  of  government  as  we  have  outlined  them  in 
the  preceding  pages  the  initiative  and  referendum  as  they  have 
developed  both  in  the  national  government  and  throughout  all 
the  local  areas,  and  an  appreciation  of  the  thoroughly  popular 
character  can  be  gained. 

The  federative  principle  is  equally  noticeable  in  a  considera- 
tion of  the  primary  areas  for  local  government  in  the  German 
German  •  Empire.  Germany  at  present  is  composed  of  twenty- 
primary  six  units ,  comprising  four  kingdoms,  six  grand  duchies, 

five  duchies,  seven  principalities,  three  free  towns, 
and  an  imperial  territory  (Alsace-Lorraine).  In  matters  of  local 
government  each  of  these  units  (except  Alsace-Lorraine)  is  free 
to  create  its  own  system. 

Although  from  an  enumeration  of  the  different  types  of  units 
which  compose  the  German  Empire  it  might  be  supposed  that 
there  would  be  a  number  of  different  types  of  local  government, 
this  is  not  the  fact.  Differences  in  minor  points  there  are,  but 
a  general  type  of  government  for  each  of  these  units  may  be 
described. 

All  the  German  units,  except  Alsace-Lorraine  and  two 
grand  duchies,  have  representative  assemblies.  In  the  four 


LOCAL   GOVERNMENT  189 

kingdoms  (Prussia,  Saxony,  Bavaria,  and  Wurttemberg)  and  in 
two  of  the  largest  of  the  grand  duchies  (Baden  and  Hesse)  the 
assembly  is  divided  into  two  chambers,  of  which  the  upper  is 
composed  of  privileged  members,  as  nobles  or  ap-  Typical  local 
pointees  of  the  monarch,  and  the  lower  of  members  government 
elected  by  the  people.  The  other  seventeen  German  features- 
units  have  single-chambered  legislatures,  a  large  proportion  of 
which  in  all  cases  is  elected  by  the  people,  the  remainder  being 
composed  of  "privileged"  members  (i.e.  nobles,  members  ap- 
pointed by  the  ruler,  or  members  elected  under  an  unusually 
high  property  qualification).  The  qualifications  for  the  elec- 
torate vary  from  full  manhood  suffrage  to  a  high  property 
qualification. 

Before  discussing  the  powers  of  these  legislatures  in  detail, 
it  is  necessary  to  point  out  that  many  matters  which  in  most 
countries  would  be  considered  of  local  interest  and 
subject  to  the  local  government  are  in  Germany  tions  on 
regarded  as  of  national  concern  and  fall  under  the  power  of 

,.  ,,    j,  ,  legislative 

management  of  agents  of  the  central  government,  bodies  in 


Thus,  in  Germany,  sanitary  measures  and  admin- 
istration,  education,  and  police  are  affairs  of  the 
central  government.  Hence  in  all  the  units  and  areas  of 
local  government  we  find  officials  of  the  central  government 
side  by  side  with  the  officials  of  the  local  government,  or 
(in  some  of  the  lower  units)  we  find  officials  exercising  two 
separate  and  distinct  sets  of  functions,  one  set  being  those  of 
representative  of  the  central  government,  the  other  being  those 
of  executive  officer  for  the  local  area. 

Furthermore,  the  powers  of  the  legislatures  are  much  curbed 
by  the  powers  of  the  monarchs  hi  the  respective  units.  In 
some  units  the  monarch  is  practically  supreme,  and  the  legisla- 
tive body  is  merely  advisory.  In  other  units  greater  power  is 
given  to  the  legislative  body,  but  nowhere  does  this  body  hold 
the  supreme  and  unrestricted  power  over  the  government  that, 
for  example,  the  great  council  in  a  Swiss  canton  holds.  The 
various  units  of  the  German  confederation  have  noteworthy 


190      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

elements  of  democracy,  but  they  are  far  from  being  the  examples 
of  ideal  democracy  that  the  Swiss  cantons  are. 

With  the  limitations  mentioned,  and  the  check  upon  their 
procedure  held  by  the  monarch  of  the  unit,  the  legislatures 
do  yet  have  a  considerable  share  in  their  own 
government.  As  a  general  rule,  they  approve  the 
lative  bodies  budget,  levy  and  apportion  taxes,  vote  appropria- 
tions,  have  the  power  to  initiate  legislation,  and  have 
the  right  to  interpellate  ministers.  Furthermore, 
as  a  means  for  the  expression  of  the  public  opinion  of  the  unit, 
they  form  an  invaluable  check  to  the  unwarranted  abuse  of 
power  by  the  monarch. 

The  ministers  who  form  the  cabinet  in  the  various  primary 
areas  are,  following  the  system  in  the  national  government, 
The  appointed  by  and  responsible  to  the  monarch  in 

cabinet.  that  area.  This  fact,  however,  does  not  interfere 
with  the  rights  of  the  legislature  to  call  the  ministers  before  its 
body  for  "interpellation"  (i.e.  a  questioning  upon  policy  or 
action). 

The  preponderating  size  and  power  of  Prussia  among  the 
Theinflu-  German  units  have  naturally  operated  to  influence 
ence  of  the  other  units  in  their  systems  of  local  government. 
iocaiSgov°-n  An  outline  of  the  main  features  of  the  Prussian 
eminent.  system  will,  therefore,  serve  to  give  an  idea  of  the 
system  throughout  nearly  all  Germany. 

The  size  of  Prussia,  and  the  fact  that  Prussia  has  in  its 
history  absorbed  a  number  of  areas  formerly  independent, 
The  rov-  ^as  ^  ^°  one  Sra(^e  °^  division  of  its  territory 
inces  of  for  local  administration  which  is  not  found  in  the 
Prussia>  other  units.  This  division  is  a  division  of  Prussia 
into  provinces,  these  provinces  usually  corresponding  in  their 
boundaries  to  the  boundaries  of  former  territories  absorbed. 
The  government  of  the  province  is  in  the  hands  of  a  provincial 
legislative  assembly,  a  provincial  executive  council  of  seven 
members,  and  a  president  (oberprdsident)  appointed  by  and  rep- 
resenting the  central  government  of  Prussia. 


LOCAL  GOVERNMENT  191 

The  important  degrees  of  local  government  in  important 
Prussia  below  the  province,  which  are  similar  to 


those  subdivisions  in  other  units  of  Germany,  are  eminent  in 

(1)  the  administrative  district   (Regierungsbezirke)  ,  below*  the 

(2)  the  circle  (Kreise),  (3)  the  commune  (Gemeinde).  province. 
The  administrative  district  is  a  division  for  the  purpose  of 

the  administration  of  the  central  government's  affairs  over 
the  various  local  areas.  Its  officials  are  a  president  Administra- 
and  committee  of  advisers,  all  being  appointed  by  tive  district. 
the  king  of  Prussia.  These  officials  have  a  general  supervision 
over  the  administration  of  the  circles  and  communes  in  the 
area,  have  charge  of  state  taxes,  education,  public  lands, 
churches,  and  other  general  matters  except  the  police.  It  has 
been  the  intention  to  keep  the  police  strictly  under  local  manage- 
ment. 

The  circle,  a  division  next  below  the  administrative  district, 
has  as  officials  a  Landrath,  who  is  the  chief  executive, 
an  assembly  (Kreistag),  and  an  executive  committee 
composed  of  the  Landrath  and  six  members  elected  by  the 
assembly.  The  Landrath,  or  chief  executive,  is  appointed  by 
the  king,  usually  from  among  a  number  of  persons  recom- 
mended by  the  assembly  (Kreistag).  He  is  both  the  represen- 
tative of  the  central  government  of  Prussia  and  the  chief  exec- 
utive of  the  local  government.  He  is  usually  a  professional 
governmental  officer,  trained  in  the  duties  of  his  position.  The 
chief  function  of  the  executive  committee  is,  as  its  name  im- 
plies, to  carry  into  effect  the  measures  of  the  assembly  (Kreistag). 

The  assembly  of  the  circle,  the  Kreistag,  is  a  very  important 
element  in  the  system.  The  members  of  the  Kreistag  are 
elected  by  a  complicated  form  of  indirect  election  so  arranged 
that  no  class  of  the  people  within  the  circle  (as  landowners, 
city  people,  rural  inhabitants)  shall  gain  a  decided  preponder- 
ance in  the  assembly.  The  system  is  not  democratic,  hi  that 
it  does  not  give  each  man  a  direct  vote  for  his  representative  ; 
it  is  rather  intended  to  balance  the  various  interests  hi  the 
area  so  that  none  can  oppress  another.  Interests,  as  land- 


192      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

owning  interests,  or  city  interests,  or  rural  interests,  are  rep- 
resented in  the  Kreistag,  rather  than  individuals.  The  mem- 
bers of  the  Kreistag  are  elected  for  six  years,  one  half  retiring 
every  three  years.  The  important  powers  of  this  assembly 
are  appointive  and  financial  in  nature.  It  chooses,  directly  or 
indirectly,  all  the  elective  officers  of  the  circle,  and  has  the  power 
to  create  local  offices.  In  financial  matters,  it  raises  revenue 
for  the  expenses  of  its  government  by  direct  taxation.  In 
addition  to  these  important  powers,  it  may  make  rules  for  ad- 
ministering local  affairs,  and  may  establish  various  charitable 
institutions  for  the  good  of  the  circle. 

The  communes  are  the  lowest  areas  of  local  government. 
The  cities  in  Germany  are  not  included  under  the  commune 
The  com-  form  of  government,  so  that  this  area  is  composed 
munes.  of  small  rural  communities.  The  communes  are 
restricted  in  size,  the  local  government  is  simple  in  organiza- 
tion and  weak  in  powers.  In  the  smaller  communes  a  mass 
meeting  of  the  citizens  regulates  the  common  pasturage  of  the 
commune,  makes  provision  for  the  care  and  maintenance  of 
the  highways,  has  a  measure  of  control  over  schools  and  churches, 
and  elects  the  mayor  and  his  assistants.  In  the  larger  com- 
munes an  elected  representative  assembly  has  similar  powers. 
The  method  of  voting,  either  for  measures  or  for  elections,  is 
commonly  by  the  three-class  system,  whereby  the  voters  are 
divided  according  to  wealth  into  three  classes,  each  class  having 
an  equal  voting  weight.  This  system  destroys  the  apparent 
democracy  of  the  communal  government. 

City  government  in  Germany  is  in  a  way  distinct  from  any 
of  the  various  subdivisions  we  have  outlined  above.  The  city 
cit  ov-  council,  elected  by  the  three-class  system  just  de- 
emment  in  scribed,  elects  the  executive  officials  and  has  the  con- 
Germany.  j.roj  Q£  ^Q  c^v  administration  and  business.  The 
powers  of  this  council  are  very  broad.  In  many  cases  its  powers 
have  been  used  to  establish  municipal  gas  plants,  electric  supply 
plants,  savings  banks,  etc.  In  addition  to  the  city  council  is 
an  executive  board,  consisting  of  a  burgomaster  and  a  small 


LOCAL   GOVERNMENT  193 

number  of  citizens.  The  burgomaster,  the  only  member  of  the 
board  who  receives  a  salary,  is  a  person  who  has  made  a  pro- 
fession of  city  management.  His  influence  in  the  community  is 
great,  he  is  appointed  for  not  less  than  twelve  years  at  a  time, 
and  his  salary  is  large.  The  executive  board  has  double  func- 
tions, being  the  local  organ  of  the  central  government  on  the  one 
hand  and  the  executive  head  of  the  city  administration  on  the 
other.  As  an  agent  of  the  central  government  the  executive 
board  is  under  the  supervision  of  the  officials  of  the  adminis- 
trative district.  As  the  executive  head  of  the  city  administra- 
tion the  executive  board  puts  into  effect  the  measures  of  the 
city  council. 

From  the  foregoing  outline  it  can  be  seen  that  local  govern- 
ment in  Germany  is  far  from  democratic.  The  three-class 
system  of  voting  is  undemocratic ;  the  appointment  of  impor- 
tant officials  in  the  government  of  each  subdivision  by  the  central 
government  of  the  whole  area  is  undemocratic ;  the  system  by 
which  the  executive  head  of  each  subdivision  is  not  only  charged 
with  the  executive  duties  of  that  subdivision  but  also  represents 
the  central  government  of  the  whole  area  is  undemocratic. 
Local  government  in  Germany  is  in  the  hands  of  the  separate 
units  which  form  the  Empire,  but  within  each  of  those  units  it  is 
organized  with  strict  supervision  from  the  central  government 
of  the  unit.  Within  each  unit  the  system  of  local  government 
resembles  in  little  the  system  of  local  government  in  France. 
Less  freedom  of  action  is  possible  to  the  governments  of  the  sub- 
ordinate areas  below  the  great  primary  areas  in  federative 
Germany  than  is  actually  exercised  by  the  governments  of 
local  areas  in  unitary  England. 

In  the  United  States  the  federative  principle  in  local  govern- 
ment lies  at  the  very  foundation  of  the  government  system. 
The  United  States  is  at  present  composed  of  forty- 
eight  commonwealths;   the  constitution  specifically  principle  in 
outlines  the  organization  and  powers  of  the  central  local  gov". 

eminent  in 

government   and  names   a  few  things   which   the  the  United 
States  may  not  do,  and  then  in  the  tenth  amend-  states- 


194      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

ment  declares:  "The  powers  not  delegated  to  the  United 
States  by  the  Constitution,  nor  prohibited  by  it  to  the  States, 
are  reserved  to  the  States  respectively,  or  to  the  people." 

As  the  United  States  has  its  constitution  outlining  its 
framework  of  government,  so  each  commonwealth  in  the 
Each  com-  United  States  likewise  has  a  constitution  outlin- 
monweaith  mg  the  framework  of  government.  As  a  matter  of 
constitu-  fact,  the  history  of  the  constitutions  in  the  older 
tion-  commonwealths  antedates  that  of  the  constitution 

of  the  United  States. 

Although  the  constitutions  of  the  different  commonwealths 
differ  radically  in  details,  such  as  length,  amount  of  detail,  etc., 
the  main  principles  on  which  the  governments  in  the 
common-  various  commonwealths  are  organized  are  the  same, 
wealth  Each  commonwealth  has  a  governor  who  serves  as 
ticuTmZa"  ^e  executive  head,  a  legislature  of  two  chambers, 
and  a  judiciary  of  various  grades.  The  resemblance 
between  the  organization  of  the  governments  of  the  several 
commonwealths  and  the  central  government  is  at  once  manifest, 
but  the  resemblance  is  not  due  to  the  copying  of  the  central 
government  by  the  commonwealths  so  much  as  to  the  fact 
that  originally  the  central  government  organization  was  evolved 
from  the  experience  of  the  original  commonwealths. 

The  legislatures  of  all  the  commonwealths  are  divided  into 
two  houses  or  chambers,  known  as  the  senate  and  the  house  of 
Common-  representatives  (or  in  six  commonwealths  the 
wealth  leg-  ' '  Assembly ' '  and  in  three  the ' 1  House  of  Delegates ' ') . 
isiatures.  rp^e  members  of  both  houses  are  chosen  by  direct 
vote  of  the  electorate.  The  senators  are  fewer  in  number  than 
the  representatives,  are  chosen  from  larger  districts,  in  two 
thirds  of  the  states  have  a  longer  tenure  of  office,  and  only  a 
certain  number  (usually  one  half)  are  renewed  at  each  election. 
Both  senators  and  representatives  must  be  resident  in  the 
districts  from  which  they  are  elected;  both  senators  and 
representatives  are  paid  by  the  commonwealth,  in  many  cases 
such  pay  being  computed  according  to  the  number  of  days  of 


LOCAL  GOVERNMENT  195 

the  legislative  session.  In  most  of  the  commonwealths  the 
constitution  provides  for  biennial  sessions  of  the  legislature; 
New  York,  Massachusetts,  Rhode  Island,  New  Jersey,  South 
Carolina,  and  Georgia,  however,  have  annual  sessions,  and 
Alabama  and  Mississippi  quadrennial  sessions.  Extraordinary 
sessions  may  be  summoned  by  the  governor  of  the  State. 

In  general,  the  powers  of  the  legislature  of  the  common- 
wealth include  everything  not  distinctly  prohibited  by  the 
constitution  of  the  United  States  or  the  consti-  powersof 
tution  of  the  commonwealth.  The  distrust  of  the  the  legisla- 
people  in  their  legislators  has  led  many  common-  tures> 
wealths  in  their  constitutions  to  prohibit  or  restrict  legislative 
action  in  certain  matters ;  thus  in  most  commonwealths  a  limit 
is  placed  upon  the  public  indebtedness  which  may  be  incurred, 
and  certain  restrictions  are  put  on  the  power  to  lay  taxes  and 
make  appropriations.  Among  important  powers  which  the 
legislatures  commonly  exercise  are  the  following :  the  power  to 
regulate  by  law  the  ownership  and  disposition  of  property ;  the 
power  to  draw  up  a  criminal  code  for  the  commonwealth  and  to 
provide  for  the  system  of  courts ;  the  power  to  regulate  educa- 
tion, the  conduct  of  elections,  the  granting  of  franchises ;  the 
power  to  make  provisions  for  the  subordinate  areas  of  local 
government,  as  counties,  townships,  cities,  etc. ;  the  power  to 
pass  general  statutes  for  the  public  good,  as  in  matters  affecting 
public  sanitation  and  health,  public  charitable  institutions, 
and  the  like ;  and  the  power  to  regulate  businesses,  corporations, 
and  the  membership  in  certain  professions,  as  of  medicine,  or 
of  law,  by  requiring  registration,  certificate  of  incorporation, 
examination,  or  the  like.  The  variety  and  complexity  of  mat- 
ters in  which  the  legislature  has  power  to  act  render  it  impossi- 
ble to  include  even  in  general  classes  all  the  subjects. 

The  organization  and  procedure  in  the  two  legislative  cham- 
bers are  in  the  hands  of  the  chambers  themselves.  In  the 
senate  the  lieutenant  governor  of  the  common- 
wealth is  usually  the  presiding  officer;  in  the 
house  a  speaker  is  elected  by  the  members.  Each  procedure. 


196      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

chamber  has  a  clerk  to  record  proceedings,  call  the  roll,  and 
keep  the  calendar  of  the  bills  under  consideration.  The  mem- 
bers of  each  chamber  are,  for  convenience  in  handling  the  large 
number  of  bills  presented,  divided  into  a  number  of  committees, 
after  the  manner  of  the  houses  of  the  national  legislature,  as 
the  committee  on  appropriations,  on  ways  and  means,  on  banks, 
etc. 

Bills  may  be  initiated  in  either  chamber,  but  in  most  common- 
wealths the  money  bills  must  originate  in  the  house.  The 
procedure  in  the  consideration  of  bills  is  similar  to  that  in  the 
national  legislature :  each  bill,  at  its  introduction  and  first 
reading,  is  referred  to  a  committee ;  when  reported  out  of  the 
committee,  it  is  read  (usually  by  title  only)  a  second  and  third 
time,  debated,  voted  upon,  and,  if  passed,  duly  enrolled  and 
presented  to  the  governor  for  his  signature.  The  procedure 
in  each  chamber  is  practically  the  same. 

The  governor  of  a  commonwealth  is  chosen  directly  by  the 
same  electorate  that  chooses  the  members  of  the  legislature. 
The  com-  ^-n  Massachusetts  and  Rhode  Island  his  term  of  of- 
monweaith  fice  is  one  year ;  in  New  Jersey  it  is  three  years ;  in 
executive.  twenty-three  of  the  remaining  States  it  is  four  years, 
and  in  the  rest  it  is  two  years.  He  is  a  paid  official,  but  the 
salary  in  most  States  seems  incommensurate  with  the  dignity 
and  importance  of  his  position. 

The  governor  is  the  official  representative  and  executive 
head  of  the  commonwealth.  He  is  charged  with  carrying  into 
His  func-  effect  the  laws  passed  by  the  legislature.  In  case  of 
tions.  emergency  he  has  the  power  to  call  the  legislature  in 

special  session,  the  legislature  under  such  circumstances  being 
prohibited  from  considering  any  measures  other  than  those  for 
which  it  was  summoned.  In  his  message  to  the  legislature, 
commonly  required  by  the  commonwealth  constitution,  he  can 
outline  the  measures  he  recommends  for  the  public  good,  the 
force  of  his  recommendation  depending,  of  course,  as  well 
upon  his  personal  influence  with  the  legislators  as  upon  the 
wisdom  of  the  measures  proposed.  He  has  the  power  to  veto 


LOCAL   GOVERNMENT  197 

any  measure  passed  by  the  legislature,  provision  being  made  that 
such  veto  can  be  overridden  by  the  legislature  by  an  extraor- 
dinary majority  in  both  houses.  He  has  the  right  of  appoint- 
ment and  of  removal  of  a  number  of  commonwealth  officials,  as 
members  of  various  boards  and  commissions,  but  his  power  of 
appointment  is  naturally  not  comparable  with  that  of  the 
President.  He  is  at  the  head  of  the  military  forces  of  the  State 
and  may  call  out  the  militia  to  preserve  public  order.  He  has 
in  many  commonwealths  the  power  to  pardon  offenders  against 
the  laws  of  the  commonwealth. 

An  important  difference  between  the  commonwealth  govern- 
ment and  the  central  government  is  to  be  noted  in  the  relations 
between  the  executive  head  and  the  heads  of  vari-  , 

Common- 

ous  executive  departments.     In  the  central  govern-  wealth 
ment,  as  has  been  explained,  the  heads  of  the  various  government 

.  and  central 

executive    departments,   as   the  secretary  of  war,  g0vem- 


the  secretary  of  state,  etc.,  are  chosen  by  and  are 
responsible  to  the  President.  In  the  common- 
wealth government  the  corresponding  officials  are  elected 
by  the  people  and  have  no  responsibility  to  the  governor. 
These  officials  are  rather  colleagues  than  subordinates.  The 
governor  is  usually  without  power  to  control  or  direct  the 
executive  heads  of  the  various  departments  ;  these  officials  ac- 
knowledge responsibility  only  to  the  electorate  by  whom  they 
were  elected. 

In  most  States  a  lieutenant  governor  is  elected  at  the  same 
time  as  the  governor.     His  office  corresponds  to  that  of  Vice 
President  in  the  central  government  ;  i.e.  he  presides  Lieutenant 
over  the  sessions  of  the  senate  and  succeeds  the  governor. 
governor  in  case  the  latter's  office  is  vacated. 

Each  commonwealth  has  a  judiciary  and  a  judicial  system 
of  its  own.     Inasmuch  as  the  jurisdiction  of  the  common- 
federal  courts  is  strictly  limited  under  the  consti-  wealth  judi- 
tution  of  the  United  States,  most  cases  at  law  are  ciary' 
brought  in  the  courts  of  the  commonwealth. 

In  each  commonwealth  the  judicial  system  presents  a  regular 


198      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

series  of  graded  courts  from  lowest  to  highest.  At  the  foot 
of  the  series  are  the  courts  of  the  justices  of  the 
o/courts*  peace,  in  which  are  brought  cases  involving  small 
courts  of  amounts  (commonly  less  than  $1.50)  or  petty 
thfpeace.  offenses.  In  the  cities  the  courts  of  the  corre- 
sponding grade  are  commonly  divided  into  two 
kinds :  (1)  the  police  courts  for  the  trial  of  petty  offenses,  and 
(2)  the  municipal  civil  courts  for  cases  involving  small  amounts. 

The  county  courts  (in  some  commonwealths  called  district 
courts  or  courts  of  common  pleas),  so  called  because  their 
County  jurisdiction  includes  the  territorial  area  known  as 
courts.  t^  county,  are  the  courts  of  the  next  higher  grade. 
This  grade  of  courts  has  original  jurisdiction  in  more  grave  crim- 
inal offenses  and  in  civil  cases  involving  considerable  amounts, 
and  may  hear  appeals  from  the  courts  of  the  justice  of  the  peace. 

In  many  commonwealths  the  next  higher  grade  of  courts  is 
the  superior  or  circuit  court,  whose  jurisdiction  often  includes 
Circuit  a  number  of  counties.  The  judges  of  these  courts 
courts.  usually  travel  (hence  the  name  " circuit")  from 
county  to  county  in  their  area,  holding  court  in  each  county. 
The  courts  have  wide  original  jurisdiction  in  both  civil  and 
criminal  cases. 

In  all  commonwealths  there  is  a  highest  court,  known  vari- 
ously as  the  supreme  court,  court  of  appeals,  or  court  of 
Supreme  errors  and  appeals.  Its  jurisdiction  includes  the 
court.  whole  commonwealth,  and  its  most  important 

function  consists  in  hearing  and  deciding  appeals  from  the  lower 
courts  and  in  passing  upon  the  constitutionality  of  the  laws. 
Its  decisions  are  final  except  where  the  nature  of  the  case  allows 
an  appeal  to  the  federal  Supreme  Court. 

In  addition  to  this  graduated  series  of  courts  are  commonly 
a  number  of  special  courts  for  special  purposes,  as  probate  (or 
Special  surrogates')  courts  for  settling  the  estates  of  persons 
courts.  deceased,  children's  courts  for  dealing  with  children's 
offenses,  courts  of  claims  for  settling  claims  against  the  common- 
wealth, etc. 


LOCAL   GOVERNMENT  199 

The  prosecuting  attorney  (also  known  as  district  attorney, 
state's  attorney,  attorney  for  the  commonwealth,  and  county 
attorney)  is  an  important  feature  in  the  judicial  Prosecuting 
system.  He  represents  the  commonwealth  and  attorney, 
conducts  the  prosecution  in  criminal  cases.  He  resembles  after 
a  fashion  the  complainant  in  civil  cases,  but  his  effort  should 
be  to  reveal  the  truth  rather  than  to  win  his  case  at  any  cost. 

In  most  commonwealths  the  judges  of  the  various  courts 
are  elected  by  the  people,  the  choice  thus  being  on  a  different 
status  from  the  judges  in  the  federal  courts.  The  choice  of 
arguments  urged  against  this  method  of  choosing  Judges, 
the  judges  were  previously  cited  in  the  discussion  of  the  choice 
of  the  federal  judges.  It  is  doubtful  whether  the  people  at 
large  are  fitted  to  estimate  the  technical  qualifications  of  a 
candidate  for  a  judgeship ;  it  is  certain  that  it  is  unfortunate  to 
force  candidates  for  judgeships  to  enter  the  partisan  struggle 
of  party  politics  for  election  to  such  a  position;  dependence 
upon  party  nomination  and  popular  election  may  influence  a 
judge  to  render  his  decisions  according  to  party  and  popular 
demands  rather  than  according  to  strictest  justice.  Opponents 
urge  that  judges  should  be  appointed  by  the  chief  executive  of 
the  commonwealth  or  by  the  legislature.  Choice  by  the  legis- 
lature, however,  too  often  leads  to  political  bargains  for  these 
important  positions,  and  choice  by  the  governor,  it  is  said, 
renders  the  judges  too  arbitrary  and  independent  of  the  popular 
will. 

Closely  connected  with  the  choice  of  judges  is  their  tenure 
of  office  and  their  salary.     In  treating  the  federal  judiciary  it 
was  pointed  out  that,  in  order  to  insure  an  impar-  Tenure  of 
tial  and  incorruptible  judiciary,  the  tenure  of  office  office  and 
should  be  secure  for  judges  during  good  behavior,  salanes- 
and  the  salaries  ample.     It  can  hardly  be  said  that  the  common- 
wealths have  complied  with  these  requirements.     The  judges 
are  elected  for  definite  terms,  comparatively  short  for  judges  of 
the  lower  grade  of  courts  and  comparatively  long  for  judges  of 
the  higher   courts.     In  only  three  commonwealths,    Massa- 


200      AN   INTRODUCTION  TO   THE   STUDY  OF  GOVERNMENT 

chusetts,  New  Hampshire,  and  Rhode  Island,  do  the  judges  of 
the  highest  court  serve  for  life  or  during  good  behavior.  In 
many  commonwealths  these  judges  of  the  highest  court  are 
chosen  for  six  years,  in  some  for  nine,  in  a  few  for  twelve,  in 
New  York  for  fourteen,  in  Maryland  for  fifteen,  in  Pennsylvania 
for  twenty-one.  The  salaries,  too,  compared  with  what  an 
able  lawyer  can  earn,  are  meager.  In  Vermont  the  judges  of 
the  highest  court  receive  but  $2500  a  year,  and  less  than  twelve 
States  pay  the  judges  of  the  higher  courts  over  $5000  a  year. 
Subordinate  With  the  above  outline  of  the  structure  of  govern- 
ar.ea?  ment  in  the  primary  areas  of  the  United  States  in 

common-       mind,  we  pass  to  a  consideration  of  the  subordinate 
wealths.         areas  within  the  commonwealths. 

Two  areas  for  local  government  are  found  within  the  com- 
monwealth ;  namely,  the  county  and  the  town.  The  common- 
wealths are  divided  into  counties  and  the  counties  are  divided 
into  towns  (or  townships  or  districts). 

The  relations  between  these  subordinate  areas  and  the  com- 
monwealth are  very  different  from  the  relations  between  the 
Relations  commonwealth  and  the  federal  state.  These 
between  counties  and  towns  are  wholly  controlled  by  the  leg- 
areas^nd*6  islature  °f  the  commonwealth;  the  legislature  can 
common-  by  law  create  or  abolish  offices,  has  the  right  to 
wealths.  dictate  absolutely  how  the  government  in  these 
areas  shall  be  carried  on.  However,  each  of  these  areas 
—  the  county  and  the  town  —  is  in  itself  a  unit  of  local 
government,  has  officials  elected  by  its  citizens,  and  is  actually 
seldom  hindered  by  legislative  interference.  Thus  we  have 
practical  self-government  for  the  area,  although  theoretically 
the  commonwealth  has  wide  and  absolute  powers. 

The  counties,  of  which  there  are  2852  in  the  United  States, 
differ  widely  in  area  and  population,  the  county  of  Bristol  in 
County  Rhode  Island  containing  25  square  miles  as  corn- 
government.  pared  with  Custer  County  in  Montana  with  20,000, 
and  some  counties  in  Texas  with  less  than  400  inhabitants  as 
compared  with  New  York  County  with  2,800,000. 


LOCAL  GOVERNMENT  201 

The  county  is  a  division  made  by  the  commonwealth  (1)  for 
the  administration  of  commonwealth  government  and  (2)  for 
purposes  of  local  government.  The  chief  officials  of  the  typical 
county  government,  who  are  commonly  officials  elected  by  the 
people  for  short  terms,  consist  (1)  of  a  county  board,  having 
charge  of  finance  and  administration,  levying  taxes  and  appro- 
priating funds,  maintaining  highways  and  county  buildings, 
and  controlling  elections  of  the  county ;  (2)  of  a  county  judge, 
who  holds  the  county  courts ;  (3)  of  a  sheriff,  who  serves  as 
representative  of  the  police  power  in  the  area,  acting  as  guardian 
of  life  and  property,  policeman,  jailer,  and  agent  to  carry  out 
the  orders  of  the  court ;  (4)  of  a  coroner,  whose  duty  it  is  to 
view  the  bodies  of  persons  who  die  as  a  result  of  accident  or 
crime ;  (5)  of  a  treasurer,  who  collects  the  taxes,  remits  to  the 
commonwealth  authorities  their  portion,  and  takes  care  of  the 
county  funds ;  (6)  and  of  a  county  superintendent  of  education 
in  the  majority  of  commonwealths,  a  county  clerk  in  charge 
of  the  county  records  in  many  commonwealths,  and  a  county 
assessor  in  most  of  the  southern  commonwealths,  who  makes 
and  keeps  the  property  assessments  of  the  county. 

The  subdivision  of  the  county  is  the  town  (or  township  or 
district).  The  position  and  functions  of  the  town  as  a  unit  of 
local  government  are  uniformly  much  more  impor-  Town  gov- 
tant  in  the  northern  and  eastern  commonwealths  eminent, 
than  in  the  southern  tier  of  commonwealths.  The  town  was 
evolved  as  a  unit  of  self-government  in  New  England  before 
the  county,  and  the  New  England  pioneers  spread  the  town 
system  with  their  progress  through  the  northern  States.  In 
the  South,  on  the  other  hand,  the  county  was  the  first  unit  of 
government,  and  the  later  division  of  the  county  into  towns  or 
townships  (usually  in  this  section  known  as  districts  or  pre- 
cincts) did  not  give  much  vitality  to  the  smaller  units. 

The  town  or  township  is  in  the  New  England  States  the  most 
vital  unit  of  local  government.  Its  government  is  vested  hi 
the  town  meeting,  an  annual  assembly  of  all  the  electors  in  the 
town,  at  which  officials  of  the  town  are  elected  and  general 


202      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

policies  discussed.  The  executive  officers  of  the  town  are  the 
selectmen,  a  small  board  elected  at  the  town  meeting,  who  have 
New  Eng-  *^e  power  to  put  in  effect  the  decisions  of  the  town 
land  town  meeting,  to  appropriate  town  funds,  to  fix  assess- 
govemment.  men^Sj  gj^  to  control  the  manner  and  details  of 
elections.  The  town  treasurer  cares  for  the  funds  of  the  town, 
the  town  constable  guards  the  lives  and  property  and  keeps 
the  peace,  the  justice  of  the  peace  has  his  court,  and  the  town 
clerk  keeps  the  town  record  —  all  these  officers  being  elected 
by  the  people  in  most  New  England  towns. 

The  intense  interest  in  local  affairs  which  has  kept  the  vitality 
in  the  New  England  [town  organization  did  not  survive  the 
Northern  transplanting  process,  so  that  the  town  system  in 
town  gov-  the  northern  tier  of  States  outside  of  New  England 
eminent.  jg  gomewhat  different.  In  a  number  of  important 
States  (Pennsylvania,  Ohio,  Indiana,  Iowa,  Kansas,  and  Mis- 
souri) the  town  meeting  has  disappeared,  all  its  functions  being 
exercised  by  elected  officials ;  in  another  group  of  States  (New 
York,  New  Jersey,  Michigan,  Illinois,  Missouri,  Minnesota, 
Nebraska,  North  Dakota,  and  South  Dakota)  the  town  meeting 
has  survived,  but  its  functions  are  much  restricted. 

In  the  southern  States  the  town  areas,  commonly  known  as 
Southern       districts,    are    often    merely    election    units    for 
town  gov-      justices   of  the  peace,   constables,   and  for  school 
supervision  and  administration. 

The  above  areas  of  local  government  do  not  include  cities; 
the  problems  presented  by  the  dense  population  in  cities  have 
City  gov-  required  more  complex  governmental  organization, 
ernment  Cities,  therefore,  have  commonly  applied  to  the 
different  commonwealth  legislatures  for  special  charters  of 
problems.  incorporation  conferring  wider  privileges  and  the 
right  to  establish  a  special  form  of  government.  Notice  that 
in  the  case  of  cities,  as  in  the  case  of  counties  and  towns,  the  units 
are  theoretically  and  legally  under  the  absolute  and  complete 
control  of  the  commonwealth  government;  the  powers  which 
the  city  exercises  are  granted  by  the  commonwealth  legislature 


LOCAL  GOVERNMENT  203 

and  may  be  changed,  annulled,  or  increased  at  the  latter's 
will. 

It  is  a  common  practice  at  present  for  commonwealth  legis- 
latures to  pass  one  general  law  for  city  government  throughout 
the  commonwealth,  thus  allowing  any  community  Thecharter 
which  fulfills  the  provisions  of  the  general  law  to  ofincorpo- 
obtain  its  charter,  and  thus  insuring  precisely  the  ration- 
same  organization  and  powers  to  all  the  cities  within  the  area. 
In  some  commonwealths,  however  (notably  Missouri,  Minne- 
sota, Michigan,  Oklahoma,  Colorado,  Washington,  Oregon,  and 
California),  a  greater  liberty  is  allowed  the  cities  in  forming  their 
organization  by  clauses  in  the  commonwealth   constitutions, 
whereby  the  electors  of  each  large  city  may  prepare  their  own 
charter,  provided  such  charter  is  consistent  with  the  laws  of 
the  commonwealth.     The  charter  of  incorporation  commonly 
has  (1)  the  name  of  the  place,  (2)  its  boundaries,  (3)  an  outline 
of  its  organization,  and  (4)  a  detailed  statement  of  its  powers. 

From  the  diversity  of  city  charters  results  great  T   ical 
diversity  in  city  government,  yet  certain  typical  city  govern- 
characteristics   of  such  government  in  the  United  ment< 
States  may  be  presented. 

Cities  in  general  reproduce  in  their  governmental  system  the 
prominent  features  of  the  commonwealth  system  and  of  the 
state  system.  Cities  have  a  legislative  body  (the  city  council), 
an  executive  head  (the  mayor),  and  a  group  of  administrative 
officers  upon  whose  efficiency  the  success  of  the  city  govern- 
ment largely  depends. 

The  city  council  is  in  most  cities  to-day  composed  of  a  single 
chamber,    but    some    important    places    (notably   Baltimore, 
Buffalo,    Louisville,    Philadelphia,    and   St.    Louis) 
still  cling  to  the  bicameral  organization.     In  uni- 
cameral  councils  the  members  are  popularly  elected  by  districts 
or  wards,  usually  one  from  each  ward ;   in  bicameral  councils 
the  members  of  the  lower  chamber  usually  are  elected  by  wards, 
and  members  of  the  upper  chamber  from  the  city  at  large. 
The  term  of  office  is  commonly  two  years. 


204      AN   INTRODUCTION   TO  THE   STUDY   OF  GOVERNMENT 

The  powers  of  the  city  council  are  specifically  set  forth  in  the 
charter  of  incorporation.  In  general,  the  council  has  power  to 
Powers  of  enact  by  ordinary  legislative  procedure  ordinances 
council.  regulating  such  matters  of  local  importance  as  the 
public  streets,  sanitation,  protection  against  fire,  suppression 
of  vice,  sale  of  liquor,  granting  of  franchises  for  street  railways, 
gas  and  water  pipes,  electric  lights,  and  the  like,  control  of 
markets  and  amusement  resorts,  and  peace  and  order  through- 
out the  city. 

The  mayor,  who  is  the  executive  head  of  the  city  govern- 
ment, is  an  official  elected  by  the  people  at  large.  His  term  of 
office  varies :  in  many  New  England  cities  it  is  one 
year ;  in  New  York,  Chicago,  and  Boston  it  is  four 
years;  in  most  cities  of  the  country  it  is  two  years.  He  has 
the  power  of  appointment  to  a  number  of  local  offices;  he  is 
charged  with  enforcing  the  ordinances  of  the  city  council ;  he 
has  the  power  of  veto  over  the  city  council,  provision  being 
usual  that  such  a  veto  may  be  overridden  only  by  an  extra- 
ordinary majority  in  the  council;  he  submits  annual  and 
special  messages  to  the  council  regarding  the  condition  of  the 
city,  and  suggests  ordinances ;  he  is  ex  officio  member  of  many 
of  the  important  boards. 

The  administrative  work  of  the  typical  city  is  divided  among 
a  number  of  departments,  as  the  law  department,  the  fire 
The  city  de-  department,  the  water  department,  the  finance 
partments.  department,  the  police  department,  the  street  depart- 
ment, the  health  department,  and  the  like.  Two  systems  of 
managing  these  departments  exist  in  common  use  in  cities 
to-day :  the  first  is  the  system  of  boards,  by  which  a  fire  board, 
a  street  board,  a  water  board,  etc.,  consisting  of  members 
appointed  by  the  mayor,  administer  the  affairs  which  come 
respectively  within  their  province ;  the  second  is  the  system  of 
commissioners,  by  which  single  commissioners,  usually  ap- 
pointed by  the  mayor,  manage  the  respective  departments.  The 
latter  system  is  more  favorably  regarded  at  present  for  the 
reason  that  responsibility  is  thus  concentrated  and  quick 
action  in  emergencies  is  assured. 


LOCAL  GOVERNMENT  205 

Severe  criticism  has  been  directed  against  city  governments 
in  recent  years.  The  power  to  grant  franchises  often  worth 
millions  of  dollars  to  corporations  has  in  some  in-  Evilsin 
stances  proved  a  source  of  corruption  in  the  city  govern- 
council ;  the  rapid  and  enormous  increase  of  popula-  n 
tion  in  many  cities  made  huge  undertakings  indispensable  for 
public  health  and  welfare,  necessitating  large  municipal  debts, 
in  incurring  which  the  council  in  some  cases  was  unwise  or 
corrupt,  or  both;  the  numerous  paid  officials  in  the  employ 
of  the  city  made  the  control  of  the  city  government  an  object 
to  the  lowest  species  of  politicians,  with  the  result  that  the 
members  of  the  city  government  deteriorated  in  quality  with 
successive  elections;  and  in  cases  of  grave  public  emergency 
the  government  failed  in  case  after  case  to  act  resolutely  and 
efficiently  for  the  public  interest.  These  evils  were  not  con- 
fined to  qne  city,  but  were  general  throughout  the  cities  in  the 
various  commonwealths. 

The  realization  of  these  evils  induced  various  attempts  at 
reform.     One  method  was  to  limit  the   powers    of  the  city 
council  by  the  city  charter.     Thus  the  city  council 
has  been  restricted  in  its  power  to  impose  taxes  or  to  i.  Limita- 
incur  debts  for  the  city ;  thus,  again,  the  city  council  tion  of 
no  longer  exercises  the  wide  powers  it  once  had  in 
granting  franchises ;  thus,  further,  the  council  has  little  power  of 
appointment  or  removal  of  city  officials  or  of  superintendence  of 
city  administration.     The  powers  taken  from  the  council  have 
in  many  cases  been  vested  in  separate  boards  appointed  by  the 
mayor,  as,  in  New  York,  the  board  of  estimate  and  apportion- 
ment. 

The  most  conspicuous  of  the  several  schemes  for  municipal 
reform  is  what  is  known  as  the  commission  form  of  2  commis_ 
government.  This  form  was  first  adopted  in  sion  govern- 
Galveston,  Texas,  after  the  storm  and  flood  of  1900  ment 
created  an  emergency  before  which  the  city  government  became 
utterly  paralyzed. 

The  chief  features  of  the  Galveston  plan  are  as  follows :   (a) 


206   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

the  entire  legislative  and  executive  powers  of  the  city  are  vested 
in  a  commission  of  five  men,  a  mayor  and  four  commissioners, 
elected  by  the  city  at  large ;  (6)  the  administrative  work  of  the 
city  is  divided  among  four  departments :  (1)  police  and  fire, 
(2)  streets  and  public  property,  (3)  water  works  and  sewers, 
(4)  finance;  (c)  one  commissioner  has  the  headship  of  each 
department,  leaving  the  mayor  as  a  member  of  the  commission 
without  a  special  department  but  with  general  supervision  over 
all  departments.  The  commission  is  expected  to  administer 
the  business  of  a  city  in  the  same  way  that  managing  directors 
manage  the  business  of  a  corporation. 

The  sensational  circumstances  under  which  this  government 
was  established  and  the  degree  of  success  it  achieved  led  many 
cities  to  seek  charters  embodying  similar  principles  of  organiza- 
tion. The  city  of  Des  Moines,  Iowa,  instituted  a  refinement 
of  the  Galveston  plan  by  adding  articles  providing  for  the  initia- 
tive, referendum,  and  recall.  The  city  of  Dayton,  Ohio,  adopted 
the  commission  plan  of  Galveston,  but  vested  the  executive 
powers  in  a  " city  manager"  to  be  chosen  by  the  commission  and 
to  be  intrusted  with  all  the  executive  business  of  the  munici- 
pality. At  the  present  time  approximately  three  hundred  cities 
in  the  United  States  in  widely  separated  sections  have  instituted 
a  commission  form  of  government,  and  a  large  number  of 
commonwealths  have  passed  laws  permitting  any  city  within 
its  area  to  organize  its  government  in  this  way. 

Under  the  commission  plan  enormous  power  is  concentrated 
in  the  hands  of  a  few  persons,  and  no  separation  between  the 
legislative  functions  and  the  executive  functions  is  made ;  but 
even  thus  the  plan  has  decided  advantages.  The  small  number 
of  men  concerned  with  governing  the  city  assures  comparatively 
rapid  and  effective  action  in  the  complex  problems  which  con- 
tinually arise ;  responsibility  can  always  be  definitely  placed  in 
case  of  failure ;  and  the  most  able  men  in  the  community  can 
confidently  be  relied  upon  to  serve  upon  the  commission  if 
desired. 


Chap.  IX.     Statistics  and  Illustrative  Citations 

1 

THREE-CLASS  SYSTEM  OF  INDIBECT  ELECTIONS  IN  PRUSSIA 

Prussia  is  divided  into  electoral  districts,  from  each  of  which  a  certain 
number  (ranging  from  1  to  3)  of  representatives  to  the  Abgeordenetenhaus 
are  chosen.  These  representatives  are  elected  by  electors  who  are  in 
turn  elected  by  the  voters  in  smaller  electoral  precincts  (known  as 
Urwahlbezirke,  or  original  electoral  precincts) .  Each  electoral  precinct 
is  entitled  to  one  elector  to  each  250  souls  in  the  precinct.1  For  the 
purpose  of  choosing  these  electors  from  the  precincts,  the  voters  in  the 
precinct  are  divided  into  the  following  classes : 


IST  CLASS 


2D  CLASS 


Those  who  pay  an  amount  Those  who,  individually  pay- 
equal  to  $  the  total  taxes,      ing  taxes  of  an  amount  less 
than  the  voters  in  the  first 
class,  collectively  pay  an 
amount  equal  to  the  second 
third  of  the  total  taxes, 
counting  from  the  large 
taxpayers  down.     The 
number  equals  about  12  % 
or  15  %  of  the  voters. 


counting  from  the  largest 
taxpayer  down.    The 
number  seldom  equals 
more  than  5  %  of  the 
voters. 


The  voters  in  this  class 
elect  one  third  of  the 
total  number  of 
electors  from  the 
precinct. 


The  voters  in  this  class 
elect  one  third  of 
the  total  number  of 
electors  from  the  pre- 
cinct. 


SD  CLASS 

Those  who,  individu- 
ally paying  taxes  of 
an  amount  less  than 
the  voters  of  the  class 
above,  collectively 
contribute  an 
amount  equal  to  \  of 
the  total  taxes.    In 
this  class  is  the  great 
majority  of  voters, 
from  80  %  to  83  %  of 
the  population. 


The  voters  in  this  class 
elect  one  third  of  the 
total  number  of 
electors  from  the 
precinct. 


The  electors  chosen  by  these  three  classes  in  the  precincts 
meet  together  and  themselves  choose  the  representa- 
tive or  representatives  of  the  district  to  the  Abge- 
ordenetenhaus (or  house  of  representatives).8 


1  Where  the  number  of  inhabitants  is  not  a  multiple  of  three,  an  extra  elector 
is  allotted  to  the  district,  or  two  extra  electors,  to  make  up  the  proper  propor- 
tion. If  one  extra  elector  is  allotted,  he  is  chosen  by  the  2d  class  of  voters ; 
if  two  extra  electors  are  allotted,  they  are  chosen  by  the  1st  and  3d  classes  of 
voters  respectively.  For  example,  if  a  precinct  (Urwahlbezirke')  contained 
1000  souls,  it  would  be  entitled  to  4  electors,  one  chosen  by  each  of  the  3  classes 
of  voters,  and  one  extra  chosen  by  the  2d  class  of  voters ;  if  a  district  had  2000 
souls,  it  would  be  entitled  to  8  electors,  two  chosen  by  each  of  the  three  classes, 
and  one  additional  by  class  1  and  one  by  class  3. 

1  As  in  all  cases  where  electors  have  no  function  except  to  elect,  the  electors 
in  Prussian  precincts  are  chosen  in  the  name  of  the  candidate  whom  they  are 
pledged  to  support  for  a  seat  in  the  Abgeordenetenhaus. 

207 


208      AN   INTRODUCTION  TO  THE   STUDY   OF   GOVERNMENT 


COMMISSION  FORM  OF  GOVERNMENT  FOR  CITIES 

Law  (The  Des  Moines  Act)  passed  by  the  Iowa  legislature, 
March  29,  1907,  "to  provide  for  the  government  of  certain 
cities.' ' 

Cities  Affected  by  the  Act 

SECTION  1 .  That  any  city  of  the  first  or  second  class,  or  with 
special  charter,  now  or  hereafter  having  a  population  of  seven  1 
thousand  or  over,  as  shown  by  the  last  preceding  state  census, 
may  become  organized  as  a  city  under  the  provisions  of  this 
act  by  proceeding  as  hereinafter  provided. 

Provision  for  the  Submission  of  the  Question  of  Commission 
Government  to  the  Electors 

SEC.  2.  Upon  petition  of  electors  equal  in  number  to  twenty- 
five  per  centum  of  the  votes  cast  for  all  candidates  for  mayor 
at  the  last  preceding  city  election  of  any  such  city,  the  mayor 
shall,  by  proclamation,  submit  the  question  of  organizing  as 
a  city  under  this  act  at  a  special  election  to  be  held  at  a  time 
specified  therein,  and  within  two  months  after  said  petition  is  filed ; 
provided,  however,  that  in  case  any  city  is  located  in  two  or 
more  townships  said  petition  shall  be  signed  by  twenty-five 
per  centum  of  the  qualified  electors  of  said  city  residing  in  each 
of  said  townships.  ...  If  the  majority  of  the  votes  cast 
shall  be  in  favor  thereof,  cities  having  a  population  of  twenty- 
five  thousand  and  over  shall  thereupon  proceed  to  the  election 
of  a  mayor  and  four  councilmen,  and  cities  having  a  population 
of  seven  thousand,  and  less  than  twenty-five  thousand,  shall 
proceed  to  the  election  of  a  mayor  and  two  councilmen,  as 
hereinafter  provided.  Immediately  after  such  proposition  is 
adopted,  the  mayor  shall  transmit  to  the  governor,  to  the  sec- 
retary of  state,  and  to  the  county  auditor,  each  a  certificate 
stating  that  such  proposition  was  adopted.  At  the  next  regu- 
lar city  election  after  the  adoption  of  such  proposition  there 
shall  be  elected  a  mayor  and  councilmen.  In  the  event,  how- 
ever, that  the  next  regular  city  election  does  not  occur  within 
one  year  after  such  special  election  the  mayor  shall,  within 

1  Originally  this  figure  was  25,000.     It  was  amended  March  30,  1909. 


LOCAL  GOVERNMENT  209 

ten  days  after  such  special  election,  by  proclamation  call  a 
special  election  for  the  election  of  a  mayor  and  councilmen, 
sixty  days'  notice  thereof  being  given  in  such  call ;  such  elec- 
tion in  either  case  to  be  conducted  as  hereinafter  provided.1 

SEC.  3.  [Provides  for  applying  the  law  and  existing  ordinances 
to  commission-governed  cities.] 

Elective  Offices.     Terms  of  Office  and  Vacancies 

SEC.  4.  In  every  city  having  a  population  of  twenty-five  thou- 
sand and  over  there  shall  be  elected  at  the  regular  biennial 
municipal  election  a  mayor  and  four  councilmen,  and  in  every 
city  having  a  population  of  seven  thousand  and  less  than  twenty- 
five  thousand,  there  shall  be  elected  at  such  election  a  mayor 
and  two  councilmen.1 

If  any  vacancy  occurs  in  any  such  office  the  remaining  mem- 
bers of  said  council  shall  appoint  a  person  to  fill  such  vacancy 
during  the  balance  of  the  unexpired  term. 

Said  officers  shall  be  nominated  and  elected  at  large.  Said 
officers  shall  qualify  and  their  terms  of  office  shall  begin  on  the 
first  Monday  after  their  election.  The  terms  of  office  of  the 
mayor  and  councilmen  or  aldermen  in  such  city  in  office  at  the 
beginning  of  the  terms  of  office  of  the  mayor  and  councilmen 
first  elected  under  the  provisions  of  this  act  shall  then  cease  and 
determine,  and  the  terms  of  office  of  all  other  appointive  officers 
in  force  in  such  city,  except  as  hereinafter  provided,  shall  cease 
and  determine  as  soon  as  the  council  shall  by  resolution  declare. 

Nomination  and  Election  of  Candidates 

SEC.  5.  Candidates  to  be  voted  for  at  all  general  munici- 
pal elections  at  which  a  mayor  and  councilmen  are  to  be  elected 
under  the  provisions  of  this  act  shall  be  nominated  by  a  pri- 
mary election,  and  no  other  names  shall  be  placed  upon  the 
general  ballot  except  those  selected  in  the  manner  hereinafter 
prescribed.  The  primary  election  for  such  nomination  shall 
be  held  on  the  second  Monday  preceding  the  general  munici- 
pal election.  .  .  . 

Constitution  of  the  Council 

SEC.  6.  Every  city  having  a  population  of  twenty-five  thou- 
sand and  over  shall  be  governed  by  a  council  consisting  of  the 

1  As  amended  by  the  Act  of  March  30,  1909. 


210      AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

mayor  and  four  councilmen,  and  every  city  having  a  popula- 
tion of  seven  thousand  and  less  than  twenty-five  thousand  shall 
be  governed  by  a  council  consisting  of  the  mayor  and  two 
councilmen,  chosen  as  provided  in  this  act,  each  of  whom  shall 
have  the  right  to  vote  on  all  questions  coming  before  the  coun- 
cil. In  cities  having  four  councilmen  three  members  of  the 
council  shall  constitute  a  quorum,  and  in  cities  having  two 
councilmen,  two  members  of  the  council  shall  constitute  a 
quorum,  and  in  cities  having  four  councilmen  the  affirmative 
vote  of  three  members,  and  in  cities  having  two  councilmen 
the  affirmative  vote  of  two  members  shall  be  necessary  to  adopt 
any  motion,  resolution  or  ordinance,  or  pass  any  measure  un- 
less a  greater  number  is  provided  for  in  this  act.1 

Powers  and  Duties  of  the  Council 

SEC.  7.  The  council  shall  have  and  possess,  and  the  council 
and  its  members  shall  exercise  all  executive,  legislative  and 
judicial  powers  and  duties  now  had,  possessed  and  exercised 
by  the  mayor,  city  council,  solicitor,  assessor,  treasurer,  audi- 
tor, city  engineer  and  other  executive  and  administrative 
officers  in  cities  of  the  first  and  second  class,  and  in  cities  under 
special  charter,  and  shall  also  possess  and  exercise  all  executive, 
legislative  and  judicial  powers  and  duties  now  had  and  exer- 
cised by  the  board  of  public  works,  park  commissioners,  the 
board  of  police  and  fire  commissioners,  board  of  water  works 
trustees,  and  board  of  library  trustees  in  all  cities  wherein  a 
board  of  public  works,  park  commissioners,  board  of  police 
and  fire  commissioners,  board  of  water  works  trustees,  and 
board  of  library  trustees  now  exist  or  may  be  hereafter  created.1 

The  executive  and  administrative  powers,  authority  and 
duties  in  such  cities  shall  be  distributed  into  and  among  five 
departments,  as  follows: 

1.  DEPAKTMENT  OF  PUBLIC  AFFAIRS. 

2.  DEPARTMENT  OF  ACCOUNTS  AND  FINANCE. 

3.  DEPARTMENT  OF  PUBLIC  SAFETY. 

4.  DEPARTMENT  OF  STREETS  AND  PUBLIC  IMPROVEMENTS. 

5.  DEPARTMENT  OF  PARKS  AND  PUBLIC  PROPERTY. 

The  council  shall  determine  the  powers  and  duties  to  be 
performed  by,  and  assign  them  to  the  appropriate  departments ; 

1  As  amended  by  the  Act  of  March  30,  1909. 


LOCAL  GOVERNMENT  211 

shall  prescribe  the  powers  and  duties  of  officers  and  employees ; 
may  assign  particular  officers  and  employees  to  one  or  more 
of  the  departments;  may  require  an  officer  or  employee  to 
perform  duties  in  two  or  more  departments;  and  may  make 
such  other  rules  and  regulations  as  may  be  necessary  or 
proper  for  the  efficient  and  economical  conduct  of  the  business 
of  the  city. 

Organization  of  Departments 

SEC.  8.  The  mayor  shall  be  superintendent  of  the  depart- 
ment of  public  affairs,  and  the  council  shall  at  the  first  regular 
meeting  after  election  of  its  members  designate  by  majority 
vote  one  councilman  to  be  superintendent  of  the  department 
of  accounts  and  finances;  one  to  be  superintendent  of  the 
department  of  public  safety;  one  to  be  superintendent  of 
the  department  of  street  and  public  improvements;  and  one 
to  be  superintendent  of  the  department  of  parks  and  public 
property;  provided,  however,  that  in  cities  having  a  popula- 
tion of  less  than  twenty-five  thousand  there  shall  be  designated 
to  each  councilman  two  of  said  departments.  Such  designa- 
tion shall  be  changed  whenever  it  appears  that  the  public  ser- 
vice would  be  benefited  thereby.  The  council  shall,  at  said 
first  meeting,  or  as  soon  as  practicable  thereafter,  elect  by 
majority  vote  the  following  officers:  A  city  clerk,  solicitor, 
assessor,  treasurer,  auditor,  .civil  engineer,  city  physician, 
marshal,  chief  of  fire  department,  market  master,  street  com- 
missioner, three  library  trustees,  and  such  other  officers  and 
assistants  as  shall  be  provided  for  by  ordinance  and  necessary 
to  the  proper  and  efficient  conduct  of  the  affairs  of  the  city; 
provided,  however,  that  in  cities  having  a  population  of  less 
than  twenty-five  thousand  such  only  of  the  above-named  officers 
shall  be  appointed  as  may,  in  the  judgment  of  the  mayor  and 
cpuncilmen,  be  necessary  for  the  proper  and  efficient  transac- 
tion of  the  affairs  of  the  city.  In  those  cities  of  the  first  class 
not  having  a  superior  court,  the  council  shall  appoint  a  police 
judge.  In  cities  of  the  second  class  not  having  a  superior  court 
the  mayor  shall  hold  police  court,  as  now  provided  by  law. 
Any  officer  or  assistant  elected  or  appointed  by  the  council 
may  be  removed  from  office  at  any  time  by  vote  of  a  majority 
of  the  members  of  the  council,  except  as  otherwise  provided 
for  hi  this  act.1 

1  As  amended  by  the  Act  of  March  30,  1909. 


212      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

Creation  and  Abolition  of  Offices 

SEC.  9.  The  council  shall  have  power  from  time  to  time  to 
create,  fill  and  discontinue  offices  and  employments  other  than 
herein  prescribed,  according  to  their  judgment  of  the  needs 
of  the  city;  and  may  by  majority  vote  of  all  the  members 
remove  any  such  officer  or  employee,  except  as  otherwise  pro- 
vided for  in  this  act ;  and  may  by  resolution  or  otherwise  pre- 
scribe, limit  or  change  the  compensation  of  such  officers  or 
employees. 

SEC.  10.   [Provides  for  Salaries.] 

SEC.  11.   [Provides  for  Meetings  of  the  Council.] 

Ordinances,  Resolutions  and  Franchises 

SEC.  12.  Every  ordinance  or  resolution  appropriating  money 
or  ordering  any  street  improvement  or  sewer,  or  making  or 
authorizing  the  making  of  any  contract,  or  granting  any  fran- 
chise or  right  to  occupy  or  use  the  streets,  highways,  bridges 
or  public  places  in  the  city  for  any  purpose,  shall  be  complete 
in  the  form  in  which  it  is  finally  passed,  and  remain  on  file 
with  the  city  clerk  for  public  inspection  at  least  one  week  be- 
fore the  final  passage  or  adoption  thereof.  No  franchise  or 
right  to  occupy  or  use  the  streets,  highways,  bridges  or  public 
places  in  any  city  shall  be  granted,  renewed  or  extended,  except 
by  ordinance,  and  every  franchise  or  grant  for  interurban  or 
street  railways,  gas  or  water  works,  electric  light  or  power 
plants,  heating  plants,  telegraph  or  telephone  systems,  or  other 
public  service  utilities  within  said  city,  must  be  authorized  or 
approved  by  a  majority  of  the  electors  voting  thereon  at  a 
general  or  special  election,  as  provided  in  section  776  of  the 
Code. 

SEC.  13.   [Provides  for  Restrictions  on  Officers  and  Employees.] 
SEC.  14.   [Provides  for  a  Civil  Service  System.] 

Monthly  Itemized  Statements 

SEC.  15.  The  council  shall  each  month  print  in  pamphlet 
form  a  detailed  itemized  statement  of  all  receipts  and  expenses 
of  the  city  and  a  summary  of  its  proceedings  during  the  preced- 
ing month,  and  furnish  printed  copies  thereof  to  the  state 
library,  the  city  library,  the  daily  newspapers  of  the  city,  and 
to  persons  who  shall  apply  therefor  at  the  office  of  the  city 


LOCAL  GOVERNMENT  213 

clerk.  At  the  end  of  each  year  the  council  shall  cause  a  full 
and  complete  examination  of  all  the  books  and  accounts  of  the 
city  to  be  made  by  competent  accountants,  and  shall  publish 
the  result  of  such  examination  in  the  manner  above  provided 
for  publication  of  statements  of  monthly  expenditures. 

Appropriations 

SEC.  16.  If,  at  the  beginning  of  the  term  of  office  of  the 
first  council  elected  in  such  city  under  the  provisions  of  this 
act,  the  appropriations  for  the  expenditures  of  the  city  govern- 
ment for  the  current  fiscal  year  have  been  made,  said  council 
shall  have  power,  by  ordinance,  to  revise,  to  repeal  or  change 
said  appropriations  and  to  make  additional  appropriations. 

SEC.  18.   [Provides  for  the  Recall.] 

SEC.  19.   [Provides  for  the  Initiative  and  Referendum.] 

SEC.  20.   [Provides  for  the  " going  into  effect  of  Ordinances."] 

Procedure  for  the  Abandonment  of  the  Commission  Form 

SEC.  21.  Any  city  which  shall  have  operated  for  more  than 
six  years  under  the  provisions  of  this  act  may  abandon  such 
organization  hereunder,  and  accept  the  provisions  of  the  general 
law  of  the  state  then  applicable  to  cities  of  its  population,  or 
if  now  organized  under  special  charter,  may  resume  said  special 
charter,  by  proceeding  as  follows : 

Upon  the  petition  of  not  less  than  twenty-five  per  centum  of 
the  electors  of  such  city  a  special  election  shall  be  called,  at 
which  the  following  proposition  only  shall  be  submitted : 
"  Shall  the  city  of  (name  the  city)  abandon  its  organization 

under  chapter of  the  acts  of  the  Thirty-second  General 

Assembly  and  become  a  city  under  the  general  law  governing 
cities  of  like  population,  or  if  now  organized  under  special 
charter  shall  resume  said  special  charter? 

If  a  majority  of  the  votes  cast  at  such  special  election  be  in 
favor  of  such  proposition,  the  officers  elected  at  the  next  suc- 
ceeding biennial  election  shall  be  those  then  prescribed  by  the 
general  law  of  the  state  for  cities  of  like  population,  and  upon 
the  qualification  of  such  officers  such  city  shall  become  a  city 
under  such  general  law  of  state ;  but  such  change  shall  not  in 
any  manner  or  degree  affect  the  property,  right  or  liabilities 
of  any  nature  of  such  city,  but  shall  merely  extend  to  such 
change  in  its  form  of  government. 


214      AN   INTRODUCTION   TO  THE   STUDY   OF   GOVERNMENT 

The  sufficiency  of  such  petition  shall  be  determined,  the  elec- 
tion ordered  and  conducted,  and  the  results  declared,  gener- 
ally as  provided  by  section  18  of  this  act,  in  so  far  as  the  pro- 
visions thereof  are  applicable. 


Requirements  about  Petitions 

SEC.  22.  Petitions  provided  for  in  this  act  shall  be  signed 
by  none  but  legal  voters  of  the  city.  Each  petition  shall  con- 
tain, in  addition  to  the  names  of  the  petitioners,  the  street  and 
house  number  in  which  the  petitioner  resides,  his  age  and 
length  of  residence  in  the  city.  It  shall  also  be  accompanied 
by  the  affidavit  of  one  or  more  legal  voters  of  the  city  stating 
that  the  signers  thereof  were,  at  the  time  of  signing,  .legal  voters 
of  said  city,  and  the  number  of  signers  at  the  time  the  affidavit 
was  made. 

Act  in  Effect 

SEC.  23.  This  act,  being  deemed  of  immediate  importance, 
shall  take  effect  and  be  in  force  from  and  after  its  publication 
in  The  Register  and  Leader  and  Des  Moines  Capital,  newspapers 
published  in  Des  Moines,  Iowa.1 

(Cited,  with  omissions,  from  Woodruff,  "City  Government 
by  Commission.") 


CITY  MANAGER  PLAN  FOR  EFFICIENCY  IN  CITY  GOVERNMENT 

Ordinance  of  the  City  of  Staunton,  Virginia,  creating  the  office. 

"Be  it  ordained  by  the  Council  of  the  City  of  Staunton, 
Virginia : 

"1.  That  there  be  appointed  by  the  two  branches  of  the 
council  in  joint  session  as  soon  as  possible  after  the  adoption 
of  this  resolution  and  thereafter  annually  at  the  regular  elec- 
tion of  city  officers,  in  July  of  each  year,  an  officer  to  be  known 
and  designated  as  'general  manager.' 

11 2.  The  general  manager  (except  in  case  of  the  first  appoint- 
ment under  this  resolution,  which  shall  be  until  the  next  regu- 
lar election  of  city  officers,  in  July,  1908)  shall  hold  office  for  the 

1  Approved  March  29, 1907 ;  amended  by  Act  of  March  30, 1909,  as  indicated. 


LOCAL  GOVERNMENT  215 

term  of  one  year  and  until  his  successor  is  duly  elected  and 
qualified,  unless  sooner  removed  by  the  council  at  its  pleasure. 

"3.  The  general  manager  shall  be  paid  an  annual  salary  of 
.  .  .  dollars,  and  he  shall  have  the  right  to  employ  one  clerk 
at  a  salary  of  ...  dollars  per  annum,  to  be  paid  by  the  city, 
the  amount  to  be  hereafter  fixed  by  the  council. 

"4.  The  general  manager  shall  devote  his  entire  time  to  the 
duties  of  his  office,  and  shall  have  entire  charge  and  control  of 
all  the  executive  work  of  the  city  in  its  various  departments, 
and  have  entire  charge  and  control  of  the  heads  of  departments 
and  employees  of  the  city.  He  shall  make  all  contracts  for 
labor  and  supplies,  and  in  general  perform  all  of  the  adminis- 
trative executive  work  now  performed  by  the  several  standing 
committees  of  the  council  except  the  finance,  ordinance  and 
auditing  committees.  The  general  manager  shall  discharge 
such  other  duties  as  may  from  time  to  time  be  required  of  him 
by  the  council. 

"5.  The  general  manager  before  entering  upon  the  duties 
of  his  office  shall  execute  a  bond  before  the  clerk  of  the  council 
in  the  penalty  of  $5000  with  good  and  sufficient  surety,  condi- 
tioned for  the  faithful  performance  of  the  duties  of  his  office." 

(Woodruff,  "City  Government  by  Commission.") 


CHAPTER  X 
GOVERNMENT  OF  DEPENDENCIES 

A  DEPENDENCY  is  any  country,  province,  or  territory  subject 
to  the  sovereignty  of  a  state  but  not  forming  territorially  a 
^  «  ...  constituent  part  of  that  state.  Thus  India  is  a  de- 

\j  clmitioii 

and  nature  pendency  of  England,  German  East  Africa  is  a  de- 
°endenc  pendency  of  Germany,  the  Philippine  Islands  are  a 
dependency  of  the  United  States.  These  territories 
may  be  considered  an  integral  part  of  the  sovereign  states  to 
which  they  owe  allegiance ;  yet  the  fact  of  actual  separation  by 
intervening  land  or  water  has  invariably  operated  to  make  their 
form  of  government  different  from  the  government  as  exercised 
within  the  strict  territorial  confines  of  the  state.  Such  sepa- 
rated territories  have  been  treated  as  dependent  upon  the  will 
of  the  sovereign  state ;  their  people  have  not  possessed  the  rights 
of  citizens  of  the  home  state  in  the  central  government  of  that 
state,  except  where  such  rights  have  been  expressly  accorded 
them ;  their  governments  have  been  subject  to  the  will  of  the 
central  government  of  the  state. 

I.  TYPES  OF  DEPENDENCIES 

Various  The  extension  of  the  sovereign  power  of  great 

d^penden-     states  over  detached  territories  has  sprung  from  a 
cies.  variety  of  causes  and  has  resulted  in  radically  dif- 

ferent types  of  dependencies. 

In  some  cases  these  detached  and  perhaps  distant  territories 
have  been  populated  by  citizens  of  the  parent  state,  who  for  one 
Colonial  de-  reason  or  another  have  left  that  state  to  establish 
pendencies,  their  fortunes  in  a  new  land.  Such  citizens  in  the 
new  land  are  willing  to  acknowledge  the  sovereignty  of  the  state 

216 


GOVERNMENT  OF  DEPENDENCIES         217 

from  which  they  have  emigrated ;  and  such  a  state  on  its  part 
is  glad  to  accept  as  its  possession  the  land  which  its  citizens  have 
settled.  Dependencies  of  this  character  are  more  properly 
called  colonies,  from  the  Latin  word  colonia,  meaning  a  planting 
place  or  a  group  who  plant  or  settle. 

Examples  of  colonial  dependencies  are  numerous.  The 
Puritans  who  fled  from  England  to  escape  religious  persecution 
in  the  seventeenth  century  and  established  themselves  in  the 
new  world  developed  into  one  of  the  American  colonies.  The 
Englishmen  who,  employed  by  a  great  English  trading  company, 
emigrated  to  the  new  world  and  established  the  beginnings  of 
Virginia  did  in  actual  fact  start  a  colony.  The  convicts  who 
were  transported  by  judicial  sentence  to  the  wilds  of  Australia 
formed  there  the  beginnings  of  an  English  colony.  The  French 
men  and  women  who  were  bribed  or  forced  to  go  to  North 
America  settled  the  French  colony  in  what  is  now  Canada. 
Various  reasons  caused  the  emigration  from  the  parent  country 
and  the  settlement  in  the  new,  but  the  vital  character  of  the 
colony  is  due  to  the  fact  that  in  all  instances  the  settlers  did 
establish  themselves  permanently  in  their  new  surroundings,  and 
that  a  recognized  bond  of  allegiance  to  the  country  from  which 
they  came  was  maintained. 

In  contrast  to  these  colonial  dependencies  are  detached 
territories  of  savage  or  semi-savage  races  which  by  one  means 
or  another  have  been  brought  into  subjection  to  a  Direct  de- 
great  power.  Thus  in  many  cases  states  have  by  pendencies, 
force  of  arms  brought  a  country  into  subjection,  as  England 
conquered  large  sections  of  India.  Again,  states  have  inveigled 
half-civilized  chieftains  into  signing  away  their  independence,  as 
agents  of  Germany  and  agents  of  England  did  for  their  respec- 
tive states  throughout  parts  of  Africa.  Again,  a  state  may  be 
the  first  to  assert  a  legal  claim  to  a  relatively  vacant  and  idle 
territory,  as  France  did  to  a  large  portion  of  the  Desert  of 
Sahara.  A  characteristic  feature  of  all  dependencies  of  this 
class  is  that  they  are  mainly  inhabited  by  a  people  foreign  in 
blood  and  in  habits  from  the  people  of  the  sovereign  state. 


218      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

Two  transitory  stages  which  in  some  cases  have  marked  the 
progress  of  these  direct  dependencies  from  their  primitive  free- 
dom to  their  position  of  direct  dependence  may  be 
stage**0**     n°ted.     These  stages  are  called,  respectively,  spheres 
toward  di-      of  influence  and  protectorates. 

enctedePend~  The  sPhere  of  influence  is  a  relatively  new  de- 
velopment in  history,  being  the  result  of  the  dis- 
graceful land-grabbing  ambitions  which  led  the  great  powers  of 
Europe  during  the  nineteenth  century  to  preempt  much  more 
sphere  of  territory  than  they  could  at  the  moment  absorb, 
influence.  England,  France,  and  Belgium,  especially,  pushing 
ahead  to  lay  claim  to  great  sections  of  barbarous  Africa  on 
slight  grounds  of  discovery  and  prior  assertion  of  right,  soon 
realized  that  the  forcible  assumption  of  such  territories  was 
certain  to  result  in  serious  misunderstandings  and  war.  By 
international  conferences  of  the  land-grabbing  powers,  there- 
fore, it  was  agreed  that  any  single  power  might,  by  giving  due 
notice  to  the  other  land-grabbing  powers  (dignifiedly  called 
"colonial  powers")?  and  by  a  reasonable  definition  of  claims 
and  boundaries,  preempt  territory  not  belonging  to  another 
civilized  power.  Disputed  claims  at  the  time  were  adjusted 
by  agreement  and  solemn  treaty,  and  the  agreeing  nations 
extended  their  claims  by  all  conceivable  methods.  Such  pre- 
emption, thus  guaranteed  by  agreements  among  the  land-grab- 
bing powers,  simply  means  that  no  great  power  other  than 
the  one  claiming  such  preemption  shall  exercise  or  attempt 
to  exercise  any  measure  of  political  control  over  the  territory 
in  question.  The  territory  need  not  be  actually  occupied  by  the 
great  state  which  claims  it,  need  not  be  actually  governed  by  the 
said  great  state,  but  by  international  agreement  no  other  great 
state  may  assert  or  exercise  control  therein.  "A  sphere  of 
influence  may  be  defined  as  a  tract  of  territory  within  which  a 
state,  on  the  basis  of  treaties  with  neighboring  colonial  powers, 
enjoys  the  exclusive  privilege  of  exercising  political  influence, 
of  concluding  treaties  of  protectorate,  of  obtaining  industrial 
concessions,  and  of  eventually  bringing  the  region  under  its 


GOVEENMENT  OF  DEPENDENCIES  219 

direct  political  control.  The  dominant  idea,  however,  is  the 
exclusion  of  the  political  activities  of  other  powers  and  the 
consequent  reservation  by  the  privileged  state  of  a  free  hand." 
(Reinsch,  "  Colonial  Government.") 

The  sphere  of  influence  is  a  transitory  condition,  as  has  been 
said.  The  next  step  may  be  to  open  the  territory  in  the  sphere 
of  influence  to  trading  companies  chartered  by  the  great  state, 
and  to  gradual  settlement ;  or  it  may  be  definitely  to  occupy  the 
territory  with  military  force,  conquer  it,  and  annex  it ;  or  it  may 
be  (and  often  is)  the  establishment  of  a  protectorate. 

As  the  word  implies,  a  protectorate  is  a  territory  which  is 
under  the  protection  of  a  powerful  state.  The  protectorate 
is  the  result  of  treaty  obligations  supposed  to  have  Protecto- 
been  in  all  cases  voluntarily  accepted  by  the  peoples  rate- 
of  the  dependent  territory.  Under  the  provisions  of  a  treaty  of 
protectorate  the  protecting  state  is  given  the  right  to  dictate  all 
questions  of  relations  with  outside  (foreign)  powers,  is  guaran- 
teed to  be  the  only  state  with  which  the  peoples  or  tribes  of  the 
protected  territory  shall  have  political  relations,  and  is  allowed 
to  have  a  resident  agent  in  the  protected  territory.  In  general, 
the  local  government  is  left  undisturbed. 

If  a  protectorate  were  merely  what  the  name  implies,  it  might 
be  administered  in  a  way  that  would  be  a  decided  advantage  to 
the  people  in  the  protected  territory,  but  the  protectorate^ 
commonly  a  transitional  status  leading  to  direct  dependency. 
The  protectorate  is  only  a  temporary  expedient  designed  to 
disguise  to  the  minds  of  the  protected  territory  the  ultimate 
object  of  the  protecting  state.  Thus  most  of  the  African  terri- 
tories originally  acquired  by  treaties  of  protection  have  already 
been  converted  by  the  land-hungry  states  into  actual 
possessions,  into  direct  dependencies. 

For  the  purposes  of  our  study  of  government,  encies: 
then,  dependencies  may  be  divided  into  two  main  J^^*1  and 
classes,  colonial  dependencies  and  direct  dependencies. 
In  colonial  dependencies  the  colonies  have  been  largely  settled 
by  citizens  of  the  ruling  state,  and  the  population  is  mainly 


220      AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

homogeneous  with  the  population  of  the  ruling  state.  In  direct 
dependencies  the  territories  have  been  brought  into  subjection 
by  force  or  by  treaty,  either  directly  or  through  the  gentler 
gradations  of  sphere  of  influence  and  protectorate,  and  the 
population  is  mainly  of  a  different  blood  and  race  from  that 
of  the  ruling  state,  is  in  fact  often  savage  or  semi-savage  in 
character. 

II.  GOVERNMENT  IN  COLONIAL  DEPENDENCIES 

Government  in  colonial  dependencies  of  modern  democratic 
states  does  not  in  modern  times  present  great  difficulties. 
Inasmuch  as  the  people  of  the  colonies  are  chiefly 
ment  in  of  the  same  race  and  familiar  with  the  same  institu- 
coioniai.de-  tions  as  the  people  of  the  governing  state,  modern 
liberalism  has  more  and  more  tended  to  extend  to  the 
former  the  same  general  political  privileges  as  are  granted  to  the 
latter.  Thus  in  states  with  liberal  suffrage  and  representative 
government,  we  may  expect  to  find  the  colonial  dependencies 
likewise  enjoying  the  privileges  of  liberal  suffrage  and  repre- 
sentative government.  Such  colonial  dependencies  may  not  in- 
correctly be  called  self-governing  colonies. 

The  three  most  prominent  examples  of  such  self-governing 
colonies  are  Canada,  Australasia,  and  South  Africa,  all  three 
being  colonial  dependencies  of  England. 

The  system  of  government  provided  for  these  colonial 
dependencies  closely  resembles  the  English  system  in  its  main 
features.  The  chief  executive  is  a  governor  or  governor-general 
appointed  by  the  English  monarch  and  serving  both  as  the  direct 
representative  of  England  and  as  the  head  of  the  colonial 
government.  As  the  direct  representative  of  England  it  is  his 
function  to  prevent  by  the  exercise  of  his  veto  power  any  meas- 
ures inimical  to  the  interests  of  the  British  Empire  as  a  whole. 
As  the  head  of  the  colonial  government,  he  is  wholly  in  the 
hands  of  a  ministry  responsible  to  the  popular  chamber  of  the 
legislature. 


GOVERNMENT  OF  DEPENDENCIES         221 

The  governor-general  seldom  finds  it  necessary  to  exercise 
his  veto  power.  His  position  is  such  that  he  can,  and  usually 
does,  wield  an  enormous  influence  upon  political  affairs.  An 
experienced  and  tactful  governor  can  by  the  force  of  his  per- 
sonality so  direct  the  policies  of  the  ministry  that  his  veto  power 
will  not  have  to  be  used. 

Each  of  the  self-governing  colonies  has  a  legislative  body,  the 
members  of  which  are  elected  by  the  people  on  a  liberal  suffrage. 
The  ministry  is  appointed  by  the  governor-general  from  the 
leaders  of  the  majority  party  in  the  legislature.  The  ministry 
can  be  dismissed  and  the  legislature  dissolved  by  the  governor- 
general,  but  new  elections  must  at  once  take  place  for  a  new 
government. 

The  powers  of  the  legislature  are  very  nearly  as  great  as 
those  of  an  independent  state.  The  ruling  state  makes  no  at- 
tempt to  interfere  with  the  internal  affairs  of  the  self-governing 
colony;  it  has  given  over  to  the  management  of  the  colonial 
legislature  the  public  lands  of  the  territory ;  it  even  allows  an 
astonishing  amount  of  freedom  in  the  tariff  and  trade  relations 
which  the  colonies  may  make  with  foreign  states,  so  that  the 
world  to-day  beholds  England  with  a  free  trade  system  and  her 
self-governing  colonies  with  a  protective  tariff  system. 

The  self-governing  colonies  are  no  longer  bound  to  England 
by  force,  for  any  one  of  the  three  is  large  and  powerful  enough 
to  carry  through  a  successful  revolt,  but  rather  by  ties  of  interest 
and  national  pride.  Before  England  takes  any  measures  liable 
to  affect  the  interests  of  these  colonies,  the  government  consults 
the  colonies  themselves ;  and  the  colonies  on  their  part  tend  to 
respect  the  interests  of  England  and  to  adjust  their  legislation 
accordingly.  What  the  future  of  these  colonies  will  be  as  they 
continue  to  develop  in  wealth,  strength,  and  importance  cannot 
be  foretold.  Some  persons  dream  of  new  states  created  by 
simple  declarations  of  independence  on  the  part  of  the  various 
self-governing  colonies ;  others  dream  of  a  new  and  marvelous 
imperial  federation  in  the  legislature  of  which  England,  Canada, 
Australasia,  and  South  Africa  shall  have  equal  or  proportionate 


222      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

weight,  while  the  English  Parliament  shall  legislate  only  for 
matters  in  the  British  Isles. 


III.  GOVERNMENT  IN  DIRECT  DEPENDENCIES 

To  give  an  adequate  conception  of  the  variety  of  govern- 
mental forms  by  which  the  powers  have  endeavored  to  foster 

the  mutual  advantages  of  their  own  states  and  of 
mentin  their  direct  dependencies  is  a  difficult  problem. 

^rom  ^e  absolute  monarchy  type  of  the  Belgian 

Congo,  through  the  German,  English,  and  French 
varieties  of  direct  control,  the  gradations  are  numerous.  To  any 
classification  that  may  be  made  certain  exceptions  should  be 
noted  and  certain  objections  may  be  urged. 

The  general  statement  may  be  made  that  none  of  the  direct 
dependencies  of  any  state  enjoys  the  degree  of  self-government 

that  is  enjoyed  by  the  English  colonial  dependencies. 
eraTtype":  ^he  nearest  approach  to  this  is  to  be  found  in  cer- 
French  tain  dependencies  of  France.  In  the  early  history 
cies6n  Cn~  °^  ^e  acquisition  of  dependencies  the  French  theory 

was  that  such  dependencies  should  be  conquered  and 
assimilated  to  the  civilization  and  laws  of  France  as  soon  as 
possible;  but  in  time  statesmen  saw  the  futility  of  trying  to 
'force  French  habits  of  thought,  French  tastes  and  customs, 
French  laws  and  civilization,  upon  great  masses  of  different 
races,  some  of  which  (as  in  Indo-China)  had  an  ancient  and 
complex  civilization  of  their  own.  For  the  policy  of  conquest 
and  assimilation,  therefore,  France  deliberately  substituted  the 
more  enlightened  policy  of  "association,"  by  which  the  ancient 
laws,  customs,  and  civilization  of  each  dependency  are  respected, 
a  degree  of  local  self-government  is  granted,  and  development  of 
each  dependency  along  its  own  characteristic  lines  is  encouraged. 
The  legislative  body  of  France  has  the  ultimate  power  to  fix 
the  government  and  make  the  laws  for  each  dependency.  In 
this  legislative  body,  however,  the  more  important  dependencies 
(as  Algeria,  Martinique,  Guadeloupe,  Reunion,  French  India, 


GOVEENMENT  OF  DEPENDENCIES         223 

French  Guiana,  Senegal,  and  Cochin  China)  are  represented  by 
delegates  elected  by  a  wide  suffrage  in  the  dependencies  and 
given  equal  rights  with  the  delegates  from  French  constitu- 
encies. The  general  supervision  of  affairs  pertaining  to  the 
dependencies  is  vested  in  a  minister  of  the  colonies,  assisted  by 
a  council  composed  of  elected  representatives  of  all  the  depend- 
encies. The  minister  of  the  colonies  and  the  council  have 
supervision  over  such  important  matters  as  the  fixing  of  tariffs 
and  the  approval  of  the  separate  budgets.  In  the  dependencies 
the  head  of  the  government  is  a  governor,  who  is  both  the  repre- 
sentative of  the  home  country  and  the  chief  executive  of  the 
dependency.  Councils  general,  partly  or  wholly  elected  by  the 
citizens,  have  in  the  more  important  dependencies  a  considerable 
degree  of  control  over  local  affairs.  In  addition  to  the  council 
general  the  governor  has  a  small  advisory  privy  council,  partly 
appointed  by  him  and  partly  elected.  In  none  of  the  depend- 
encies is  the  governor  or  his  advisory  privy  council  directly 
responsible  to  the  more  representative  council  general. 

The  typical  government  of  the  direct  dependencies  of  England 
is  theoretically  less  liberal  than  that  just  outlined,    in   that 
such  dependencies  are  not  allowed  the  privilege  of  Engiisll 
representation  in  the  English  Parliament ;  but  in  direct  de- 
practice,  under  a  number  of  great  administrators  the  pen 
system  has  tended  to  give  these  dependencies  all  the  powers 
they  could  wisely  exercise.     The  laws  are  typically  decrees 
issued  by  the  governor  or  commissioner  with  the  concurrence 
of  a  privy  council.     Both  governor   and  privy  council   are 
appointed  by  the  crown.     The  finances  are  directly  under  the 
control  of  the  crown.     Such  colonies,  of  which  Ceylon  is  an 
example,   are  in  the  English  system  designated   as   "crown 
colonies."     In  England  the  general  supervision  of  affairs  per- 
taining to  these  dependencies  is  under  the  colonial  office,  whose 
head  is  the  colonial  secretary,  a  member  of  the  English  cabinet. 

Because  of  its  immense  size  and  special  importance,  as  well 
as  because  of  the  peculiar  conditions  due  to  the  small  English 
population  contrasted  with  the  enormous  native  population, 


224      AN   INTRODUCTION   TO   THE   STUDY   OF  GOVERNMENT 

the  government  of  the  dependency  of  India  is  organized  on 
a  system  separate  from  that  of  other  crown  colonies.  The 
supreme  executive  head  in  India  is  the  governor- 
general,  or  viceroy,  appointed  by  and  represent- 
ing the  crown,  and  an  executive  council  of  six  members,  all 
appointed  by  the  crown.  Both  the  viceroy  and  the  council 
usually  hold  office  for  five  years.  For  legislative  purposes 
various  persons  nominated  by  the  viceroy  cooperate  with 
the  executive  council.  At  present  (1914)  there  are  sixty-eight 
such  members.  This  legislative  body  has,  under  a  number  of 
restrictions,  the  authority  to  legislate  for  British  India,  for 
British  subjects  in  India,  and  for  Indian  subjects  of  Great 
Britain  in  any  part  of  the  world.  The  dependency  (outside 
of  a  number  of  protectorates  in  which  native  Indian  princes 
are  permitted  to  govern  their  territories  with  the  advice  of  a 
resident  English  agent)  is  divided  into  fifteen  provinces,  at 
the  head  of  each  of  which  is  a  British  official  representing,  and 
responsible  to,  the  viceroy.  Eight  of  these  provinces  have 
legislative  councils  of  their  own,  with  limited  powers.  In 
England,  the  interests  of  India  are  separated  from  those  of 
other  dependencies  and  put  in  charge  of  a  secretary  for  India 
(who  is  a  member  of  the  cabinet  appointed  by  the  crown)  and 
a  council  of  not  less  than  ten  and  not  more  than  fourteen 
members,  all  appointed  by  the  crown. 

The  German  type  of  government  for  dependencies  has  little 
or  no  sign  of  liberalism.  The  dependencies  are  looked  upon 
German  anc^  Created  as  wholly  vassal  to  the  government  of 
direct  de-  the  state,  incapable  of  any  appreciable  measure  of 
pendencies.  seif.gOvernment,  and  to  be  developed  for  the  ulti- 
mate trade  profit  of  Germany.  The  state  government  has 
not  tried  to  impose  German  civilization  and  customs  upon 
the  subject  peoples,  it  is  true,  but  the  theory  of  absolute 
domination  and  speedy  development  for  the  advantage  of  the 
ruling  state  is  being  followed.  Representative  institutions 
do  not  exist  in  the  German  dependencies ;  the  executive  .power 
is  vested  in  the  agent  of  the  government,  the  administration 


GOVERNMENT  OF  DEPENDENCIES         225 

is  carried  on  by  a  body  of  officials  responsible  to  and  under  the 
direction  of  the  government  agent,  and  final  power  in  all  matters 
is  concentrated  in  the  hands  of  the  German  government  in  Berlin. 
A  most  remarkable  example  in  modern  times  of  a  government 
of  a  dependency  organized  and  operated  for  the  sole  advantage 
of  its  ruler  is  to  be  noted  in  the  case  of  the  Belgian  The  Bel- 
Congo.  Leopold  II,  king  of  Belgium,  personally  sian  Congo, 
financed  explorations  into  Africa  in  the  region  of  the  Congo 
River,  and  finally,  by  virtue  of  these  explorations  and  of  va- 
rious treaties  arranged  by  his  agents,  managed,  about  1885, 
to  have  recognized  as  a  new  state  what  is  commonly  called 
the  Congo  Free  State.  The  main  boundaries  of  the  new 
state,  to  include  about  900,000  square  miles  of  territory,  were 
determined  by  a  series  of  treaties  with  other  powers  between 
1885  and  1895.  The  Belgian  parliament  in  1885  authorized 
Leopold  to  be  the  chief  of  the  new  state  and  declared  that  the 
union  between  Belgium  and  the  Congo  Free  State  should  be 
exclusively  personal.  This  authority  and  declaration  left  Leo- 
pold at  liberty  to  organize  the  government  as  he  wished.  He 
proceeded  to  create  an  absolute  monarchy  with  himself  as 
king,  empowered  to  decree  arbitrarily  the  civil  and  criminal 
codes  of  laws.  The  king  and  all  the  high  officials  of  the  new 
state  resided  at  Brussels ;  a  governor-general  appointed  by, 
and  responsible  to,  the  king  resided  in  the  African  state  and 
had  absolute  control  over  all  the  civil  and  military  adminis- 
tration. As  enormous  wealth  in  rubber  and  ivory  was  revealed 
in  the  state,  a  system  of  forced  labor  was  decreed  by  the  king, 
and  natives  were  required  to  dispose  of  the  rubber  and  ivory 
they  obtained  to  the  king's  agents  at  the  king's  price.  Such 
decrees  opened  the  way  to  inhuman  treatment  of  the  natives  by 
Leopold's  agents,  until  conditions  made  continuance  of  such  a 
government  impossible.  In  1908  the  Belgian  parliament  an- 
nexed the  Congo,  making  it  a  direct  dependency,  organizing  a 
government  in  which  (as  in  the  German  system)  the  final  au- 
thority was  held  by  the  Belgian  government,  and  at  once  taking 
steps  to  correct  the  worst  abuses  under  the  old  administration. 
Q 


226      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


IV.  THE  UNITED  STATES  AND  ITS  DEPENDENCIES 

Policy  of  The  policy  of  the  United  States  toward  its  de- 

the  United  pendent  possessions  hardly  permits  such  possessions 
toward  de-  to  be  classified  strictly  under  any  one  of  the  afore- 
pendencies.  mentioned  categories. 

Under  the  constitution  (Art.  4,  Section  3,  clause  2)  the  Congress 
of  the  United  States  is  given  "  power  to  dispose  of  and  make 
Constitu-  a^  nee(tful  rules  and  regulations  respecting  the  terri- 
tionai  tory  and  other  property  belonging  to  the  United 

power.  States."  This  clause  has  been  subject  to  interpre- 
tation as  changing  conditions  demanded.  Congress  has  assumed 
under  it  the  right  to  acquire  new  territory,  to  govern  territory, 
to  admit  territory  to  statehood,  and  to  sell,  lease,  or  otherwise 
dispose  of,  public  lands. 

The  Northwest  Ordinance  of  1787,  confirmed  by  the  Congress 
of  1789,  which  was  an  ordinance  to  provide  an  organized  gov- 
The  North-  ernment  for  the  vast  region  west  of  Pennsylvania, 
west  Ordi-  east  of  the  Mississippi  River,  north  of  the  Ohio 
nance.  River,  and  south  of  Canada,  served  as  the  basis  of 

the  territorial  policy  of  the  United  States  from  its  inception 
to  the  Spanish  War. 

This  ordinance  provided:  (1)  in  territories  having  less  than  five 
thousand  free  men,  for  a  governor,  and  a  council  composed  of  the 

governor  and  three  appointed  judges  and  possessed 
Provisions         ,.         .    .     .     .  ,    ,.  /rtX   .  ., 

of  the  of  certain  legislative  powers ;  (2)  in  territories  con- 

Northwest  taining  five  thousand  free  men,  for  an  assembly, 
the  upper  house  of  such  assembly  to  be  appointed 
by  Congress  and  the  lower  house  to  be  elective ;  (3)  for  the 
admission  of  a  territory  to  statehood  when  its  population  reached 
60,000 ;  and  (4)  for  freedom  of  worship,  the  benefits  of  the  writ 
of  habeas  corpus,  exemption  from  cruel  and  unusual  punish- 
ments, and  the  prohibition  of  slavery.  In  its  main  provisions 
this  ordinance  was  reenacted  in  1790  for  the  territory  south 
of  the  Ohio  River. 
The  above  ordinance  is  obviously  intended  to  provide  an 


GOVERNMENT  OF  DEPENDENCIES         227 

organization  of  government  to  territories  which  are  prospective 
States.  As  a  matter  of  fact,  nearly  all  of  the  States  outside  of 
the  original  thirteen  have  gone  through  the  two  stages  of  terri- 
torial government  provided  by  the  above  ordinance ;  i.e.  first, 
government  by  an  appointed  governor  and  council,  and  second, 
government  by  an  appointed  governor  and  a  legislature  of 
which  the  upper  house  has  been  appointed  and  the  lower  elected. 

The  purchase  of  Alaska  from  Russia  in  1867  had  no  material 
effect  at  the  time  upon  the  policy  of  the  United  States  respect- 
ing   its    dependent    territories.     Alaska    was    con- 
sidered valuable  only  for  its  fisheries,  it  was  sparsely 
inhabited,  and  it  did  not  require  a  complex  organization  of 
government.     It  was  not  until  the  discovery  of  gold  caused 
the  great  influx  of  Americans  that  territorial  government  was 
demanded  by  Alaska  and  considered  by  Congress.     Territorial 
organization  was  conferred  by  Congress  in  1912. 

The  great  break  between  the  old  policy  and  the  new  dates 
from  the  time  of  the  Spanish  War.     Since  1898  the  United 
States  has  faced  the  problem  of  organizing  varieties  New  policy 
of  government  for  types  of  dependencies  radically  toward  de- 
different  from  its  former  territories.     The  depend-  Pendencies- 
encies  acquired  about  this  time  were  the  following :    Hawaii 
(annexed  by  joint  resolution  of  Congress,   1898)  and  Porto 
Rico  and  the  Philippines  (ceded  by  Spain  under  the  treaty  of 
peace  at  the  close  of  the  Spanish  War). 

The  government  for  the  Hawaiian  Islands  did  not  present 
special  difficulties ;  there  was  a  liberal  admixture  of  Americans 
and  Europeans  in  the  population,  and  the  country  had 
regularly  been  annexed  by  act  of  Congress  and  was 
thus  to  be  considered  legally  a  part  of  the  United  States.     There 
existed  no  reason  why  Hawaii  should  not  be  treated  as  the 
territories  had  previously  been.     A  regular  territorial  govern- 
ment was,  therefore,  organized  and  established. 

The  status  of  Porto  Rico  and  the  Philippines,  however,  was 
different.  They  had  been  acquired,  not  by  deliberate  annexa- 
tion, but  as  a  result  of  conquest;  their  peoples  were  in  the 


228      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

main  alien  in  blood  and  customs  from  our  own,  and  in  the 
Philippine  Islands  included  a  considerable  number  of  barbarous 
or  semi-barbarous  tribes.  It  seemed  inconceivable  that  the 
Porto  Rico  United  States  should  extend  the  privileges  of  repre- 
and  the  sentative  government  and  American  citizenship  to 
Philippines.  ^e  peOp}e  of  Such  dependencies. 

On  a  technical  question  relative  to  the  power  of  Congress 
over  the  tariffs  in  the  dependencies,  the  matter  was  brought 
before  the  Supreme  Court  of  the  United  States.  In  1901  its 
decision  in  what  is  called  the  Insular  Cases  was  handed  down. 
By  this  opinion  the  court  declared  that  Congress  had  the  power 
to  decide  when  territory  was  completely  incorporated  into  the 
United  States,  and  that  Congress  might  make  for  territory  not 
thus  completely  incorporated  a  code  of  laws  different  from  the 
laws  applying  to  the  commonwealths.  The  practical  effect 
of  this  decision  was  that  Congress  has  the  right  to  distinguish 
between  dependencies  of  radically  different  characteristics, 
to  allow  to  one  kind  of  dependency  a  representative  demo- 
cratic government  and  to  withhold  such  government  from 
another  kind,  and  to  organize  a  government  of  a  special  kind 
suited  to  the  peculiar  conditions  in  any  dependency. 

Under  the  powers  thus  interpreted  to  be  in  its  hands,  Con- 
gress organized  a  government  for  Porto  Rico  and  the  Philip- 
pines. A  special  form  of  territorial  government  was  provided 
for  Porto  Rico,  in  which  the  governor  and  a  majority  of  the 
members  of  the  upper  legislative  chamber  are  directly  ap- 
pointed by  the  President  of  the  United  States  and  the  members 
of  the  lower  chamber  are  elected  by  universal  suffrage.  The 
territory  is  represented  in  Congress  by  a  "  resident  commis- 
sioner" with  the  power  of  debate  but  not  of  vote. 

The  act  establishing  civil  government  in  the  Philippine 
Islands  was  passed  by  Congress  July  1,  1902.  Under  this 
act  the  government  is  composed  of  a  civil  governor  (governor- 
general)  and  a  council  of  seven  commissioners  (four  American 
and  three  Filipino),  all  appointed  by  the  President  of  the  United 
States.  The  number  of  members  of  the  council  has  since  been 


GOVERNMENT  OF  DEPENDENCIES         229 

increased  to  nine,  and  very  recently  (1914)  the  Filipinos  have 
been  given  a  majority  of  places  on  the  commission.  In  1907 
the  President,  in  accordance  with  an  act  of  Congress,  directed 
the  Philippine  Commission  to  call  a  general  election  for  dele- 
gates to  a  popular  assembly.  The  first  Filipino  assembly 
was  formally  opened  Oct.  16,  1907.  Other  elections  have 
been  held  in  1909  and  1912.  Hereafter  elections  will  be  held 
quadrennially.  It  is  the  apparent  desire  of  Congress  to  elevate 
the  people  of  these  islands  to  such  a  degree  of  political  intelli- 
gence that  full  independence  may  be  granted  them,  other  de- 

Outside  of  the  dependencies  mentioned  above,  the  J*^ndes 
United  States  stands  in  the  relation  of  protector  or  united 
controller  to  some  other  territories.  states. 

By   the   Isthmian   Canal   Convention  of   Nov.    18,    1903, 
concluded  between  the  Republic  of  Panama  and  the  United 
States,  the  latter  obtained  a  perpetual  right  of  oc- 
cupation, use,  and  control,  of  and  over  a  zone  of 
land  ten  miles  wide  across  the  Isthmus  of  Panama,  paying 
for  this  right  the  sum  of  $10,000,000  and  (from  1913)  $250,000 
a  year.     The  United  States  has  guaranteed  the  independence 
of  the  Republic  of  Panama.     For  the  government  of  the  Canal 
Zone  Congress  provided  that  the  President  shall  appoint  a 
governor  and  such  officers  as  may  be  necessary. 

Liberia,  a  republic  on  the  west  shore  of  Africa,  was  founded 
in  1820  by  the  American  Colonization  Society  for  the  purpose 
of  providing  for  the  return  to  Africa  of  the  negroes.  Liberia 
This  republic  is  under  the  protection  of  the  United 
States,  but  the  United  States  has  no  desire  to  change  the  status, 
as  by  annexing  the  country. 

Cuba  is  at  the  present  time  virtually  a  protectorate  of  the 
United  States.     The  Cuban  constitution  provides  that  the 
government  shall  enter  into  no  foreign  relations 
without   the   consent   of   the   government   of   the 
United  States  and  that  the  Cuban  government  must  permit 
the  United  States  to  intervene  in  its  affairs  if  such  intervention 
seems  necessary  to  prevent  internal  disturbance. 


230      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

V.  EFFECTS  OF  ACQUISITION  OF  DEPENDENCIES  UPON 
GREAT  STATES 

The  above  outline  of  the  forms  of  the  growth  and  character 
of  dependencies  and  the  governmental  policies  pursued  by  the 
controlling  nations  toward  them  does  not  take  into 
ofCdepem?  account  tne  effect  of  dependencies  upon  the  great 
encieshas  nations  themselves.  As  a  matter  of  fact,  the  ac- 
Quisftion  by  the  great  nations  of  the  world  of  de- 
pendencies has  had  marked  effects  upon  the  nations 
themselves.  Internal  politics,  foreign  relations,  even  the 
manner  of  thought  of  the  people,  have  been  radically  recon- 
structed during  this  era  of  territorial  aggrandizement. 

One  great  principle  evolved  from  the  French  Revolution  era 

was  the  principle  of  nationality,  meaning  in  effect  that  a  people 

allied  by  race,  religion,  and  habits  should  ordinarily 

tion  of  compose  one  homogeneous  independent  state.      It 

principle  of    js  obvious  that  the  acquisition  of  dependencies  oc- 

nationality.  .     ,  ,  .         .,  ?     j-.cc          j.  •  v    • 

cupied  by  people  widely  different  in  race,  religion, 
and  habits  from  those  of  the  controlling  state  has  largely  nullified 
the  force  of  this  principle.  Germany  with  its  large  population 
of  African  negroes,  France  and  Italy  with  their  North  African 
Mohammedans,  England  with  its  huge  Indian  territory,  and 
the  United  States  with  its  semi-savage  Philippine  tribes,  are  no 
longer  homogeneous  in  population.  The  principle  of  nation- 
ality as  a  force  in  world  politics  is  no  longer  considered  a  factor. 
The  acquisition  of  dependencies,  too,  requires  the  maintenance 
of  sufficient  force  to  hold  them  against  aggression.  The 
Increase  of  enormous  increase  of  armaments,  both  naval  and 
armaments,  military,  dates  from  the  dependency  period.  Eng- 
land does  not  need  a  navy  twice  as  strong  as  that  of  any  other 
state  merely  to  protect  its  own  shores,  but  it  does  need  such 
unusual  strength  to  keep  open  the  communications  with  its 
scattered  dependencies.  The  United  States  is  in  no  fear  of 
attack  from  hostile  states,  but  to  maintain  its  Monroe  Doctrine, 
to  hold  Hawaii,  the  Philippines,  and  the  Canal  Zone,  it  must 


GOVERNMENT  OF  DEPENDENCIES         231 

annually  spend  over  a  hundred  and  twenty-five  millions  in 
the  development  and  upkeep  of  a  large  naval  force.  The 
powers  that  control  dependencies  invariably  feel  the  necessity 
of  developing  their  armaments  to  secure  their  dependencies 
and  their  trade  routes. 

International  relations,  again,  have  been  profoundly  affected. 
Whenever  the  dependencies  of  one  power  border  upon  those  of 
another,  especially  where  the  boundaries  are  but 
vaguely  indicated,  chances  for  continual  friction 
are  present.  Thus  France  and  England  formerly  standings 
collided  in  India.  Thus  Russia  and  England  have 
in  the  past  been  mutually  suspicious  of  each  other's 
acts  in  Persia  and  along  the  northernmost  boundaries  of  Indian 
territories.  Thus  Japan  and  Russia  came  in  conflict  in  eastern 
Asia.  Such  chances  for  international  misunderstanding  are 
ever  present,  with  the  possibility  of  a  devastating  war. 

The  effect  of  the  acquisition  of  dependencies  upon  internal 
issues  is  no  less  marked.     Italian  ministries  have  fallen  and 
the   government   changed   as   a  result  of   colonial 
policies   in   Africa.     The  English    Parliament    has  interna?"" 
ceased  to  legislate  solely  for  the  British  Isles,  but  policies  and 
has  become  the  legislative  center  for  a  vast  empire 
whose  ramifications  extend  around  the  world.    In  the  United 
States  the  effect  of  the  decision  in  the  Insular  Cases  and  the 
action  subsequently  taken  by  Congress  has  enormously  in- 
creased the  power  and  prestige  of  the  central  government  as 
contrasted  with  the  several  commonwealth  governments. 

Important  and  difficult  problems  for  the  controlling  powers 
have  resulted  from  the  acquisition  of  dependencies  inhabited 
by  alien  peoples  of  a  low  degree  of  civilization. 

rriV  .•  j      •    •!•      x'  f  •      Problems 

The  education  and  civilization  of  savage  or  semi-  with  respect 
savage   peoples    brought  under   their   control,  the  to  depend- 
protection  of  such  peoples  from  exploitation,  the 
equitable  adjustment  of  the  laws  of  a  higher  civilization  to  the 
customs  and  habits  of  a  lower  —  these  broadly  are  problems 
which  have  tasked  the  best  statesmanship  of  the  period. 


232      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

Perhaps  the  best  result  of  the  acquisition  of  dependencies 
has  been  the  result  upon  the  mental  and  political  attitude  of 
_  .  the  people  in  the  great  colonial  powers.  A  general 

Broadening     ,          ,      .          £      .  .,,  •       iV  ,  . 

of  view  and  broadening  of  view  with  a  simultaneous  deepening 
deepening  of  patriotism  is  noticeable.  The  Englishman  is  no 
among  longer  interested  only  in  the  affairs  of  his  own  small 
p®°ple°f  group  of  islands:  he  is  interested  also  in  Persia, 
Afghanistan,  Australia,  and  the  uttermost  bounds  of 
the  globe.  His  pride  in  and  love  of  the  English  flag  is  in- 
creased as  he  realizes  that  it  is  the  flag  of  the  sovereign 
power  of  one  sixth  part  of  the  earth's  surface.  Similarly  the 
Germans  and  the  French  look  beyond  the  strict  confines  of 
their  territory  in  Europe  to  their  possessions  abroad.  In  our 
own  country  the  acquisition  of  Hawaii,  Porto  Rico,  and  the 
Philippines,  the  lease  of  the  Canal  Zone,  the  virtual  protecto- 
rate over  Cuba,  and  the  attitude  toward  the  whole  hemisphere 
implied  in  the  Monroe  Doctrine  have  widened  our  political 
horizon  enormously.  We  feel  that  the  United  States  definitely 
occupies  a  place  among  the  great  nations  of  the  world;  we 
desire  to  uphold  its  dignity  and  increase  its  prestige. 


Chap.   X.    Statistics  and  Illustrative  Citations 
1 

TREATY  TO  ILLUSTRATE  THE  SPHERE  OF  INFLUENCE 

Her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  Empress  of  India,  etc.,  etc.,  and  His  Most 
Faithful  Majesty  the  King  of  Portugal  and  Algarves,  etc.,  etc., 
with  a  view  to  settle  definitely  the  boundaries  of  their  respective 
sphere  of  influence  in  Africa,  and  being  animated  with  the 
desire  to  confirm  the  friendly  relations  between  the  two  Powers, 
have  determined  to  conclude  a  Treaty  to  this  effect  and  have 
named  .  .  .  their  respective  Plenipotentiaries.  .  .  . 

Who,  having  communicated  to  each  other  their  respective 
full  powers,  found  in  good  and  due  order,  have  agreed  upon  and 
concluded  the  following  articles : 

ARTICLE-  I.  Great  Britain  agrees  to  recognize,  as  within 
the  dominion  of  Portugal  in  East  Africa,  the  territories  bounded  : 
[boundaries  given.] 

ART.  III.  Great  Britain  engages  not  to  make  any  objection 
to  the  extension  of  the  sphere  of  influence  of  Portugal  south  of 
Delagoa  Bay,  as  far  as  a  line  following  the  parallel  of  the  con- 
fluence of  the  river  Pongolo  with  the  river  Maputo  to  the  sea- 
coast. 

ART.  IV.  It  is  agreed  that  the  western  line  of  division  sepa- 
rating the  British  from  the  Portuguese  sphere  of  influence  in 
Central  Africa  shall  follow  the  centre  of  the  channel  of  the 
upper  Zambesi,  starting  from  the  Katima  Rapids  up  to  the 
point  where  it  reaches  the  territory  of  the  Barotse  kingdom.  .  .  . 

ART.  V.  Portugal  agrees  to  recognize,  as  within  the  sphere 
of  influence  of  Great  Britain  on  the  north  of  the  Zambesi,  the 
territories  extending  from  the  line  to  be  settled  by  the  Joint 
Commission  mentioned  in  the  preceding  Article  to  lake  Nyassa, 
including  the  islands  in  that  lake  south  of  parallel  11°  30', 
south  latitude,  and  to  territories  reserved  to  Portugal  by  the 
line  described  in  article  I. 

ART.  VI.  Portugal  agrees  to  recognize,  as  within  the  sphere 
of  influence  of  Great  Britain  to  the  south  of  the  Zambesi,  the 
territories  bounded  on  the  east  and  north-east  by  the  line 
described  in  article  II. 

ART.  VII.  All  the  lines  of  demarcation  traced  in  articles 

233 


234      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

I  to  VI  shall  be  subject  to  rectification  by  agreement  between 
the  two  Powers,  in  accordance  with  local  requirements.  .  .  . 

ART.  VIII.  The  two  Powers  engage  that  neither  will  inter- 
fere with  any  sphere  of  influence  assigned  to  the  other  by 
articles  I  to  VI.  One  Power  will  not,  in  the  sphere  of  the  other, 
make  acquisitions,  conclude  treaties,  or  accept  sovereign  rights 
or  protectorates.  It  is  understood  that  no  companies  nor 
individuals  subject  to  one  Power  can  exercise  sovereign  rights 
in  a  sphere  assigned  to  the  other,  except  with  the  assent  of  the 
latter. 

ART.  IX.  Commercial  or  mineral  concessions  and  rights 
to  real  property  possessed  by  Companies  or  individuals  be- 
longing to  either  Power  shall,  if  their  validity  is  duly  proved, 
be  recognized  in  the  sphere  of  the  other  Power.  For  deciding 
on  the  validity  of  mineral  concessions  given  by  the  legitimate 
authority,  within  30  miles  of  either  side  of  the  frontier  south 
of  the  Zambesi,  a  Tribunal  of  Arbitration  is  to  be  named  by 
common  agreement. 

It  is  understood  that  such  Concessions  must  be  worked  ac- 
cording to  local  Regulations  and  Laws.  .  .  . 

ART.  XVI.  The  present  Convention  shall  be  ratified  and  the 
ratification  shall  be  exchanged  at  London  or  Lisbon  as  soon  as 
possible. 

In  witness  whereof  the  respective  Plenipotentiaries  have 
signed  the  present  Convention,  and  have  affixed  thereto  the 
seal  of  their  arms. 

Done  in  duplicate  at  Lisbon  the  eleventh  day  of  June,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-one. 

(L.  S.)  (a)  GEORGE  G.  PETRE. 


TREATY  TO  ILLUSTRATE  THE  RESERVAL  OF  TRADE  AND  ECO- 
NOMIC PRIVILEGES  IN  RESPECTIVE  SPHERES  BY  CON- 
TRACTING STATES 

(Translation) 

CONVENTION 

His  Majesty  the  King  of  the  United  Kingdom  of  Great 
Britain  and  Ireland  and  of  the  British  Dominions  beyond  the 
Seas,  Emperor  of  India,  and  His  Majesty  the  Emperor  of  All 
the  Russias,  animated  by  the  sincere  desire  to  settle  by  mutual 


GOVERNMENT  OF  DEPENDENCIES  235 

agreement  different  questions  concerning  the  interests  of  their 
States  on  the  Continent  of  Asia,  have  determined  to  conclude 
Agreements  destined  to  prevent  all  cause  of  misunderstanding 
between  Great  Britain  and  Russia  in  regard  to  the  questions 
referred  to,  and  have  nominated  for  this  purpose  their  re- 
spective Plenipotentiaries,  .  .  . 

AGREEMENT   CONCERNING   PERSIA 

The  Governments  of  Great  Britain  and  Russia  having  mu- 
tually engaged  to  respect  the  integrity-  and  independence  of 
Persia,  and  sincerely  desiring  the  preservation  of  order  through- 
out that  country  and  its  peaceful  development,  as  well  as  the 
permanent  establishment  of  equal  advantages  for  the  trade 
and  industry  of  all  other  nations; 

Considering  that  each  of  them  has,  for  geographical  and 
economic  reasons,  a  special  interest  in  the  maintenance  of 
peace  and  order  in  certain  provinces  of  Persia  adjoining,  or  in 
the  neighbourhood  of,  the  Russian  frontier  on  the  one  hand, 
and  the  frontiers  of  Afghanistan  and  Baluchistan  on  the  other 
hand;  and  being  desirous  of  avoiding  all  cause  of  conflict 
between  their  respective  interests  in  the  above-mentioned  prov- 
inces of  Persia; 

Have  agreed  on  the  following  terms :  — 


Great  Britain  engages  not  to  seek  for  herself,  and  not  to 
support  in  favour  of  British  subjects,  or  in  favour  of  the  sub- 
jects of  third  Powers,  any  Concessions  of  a  political  or  commer- 
cial nature  —  such  as  Concessions  for  railways,  banks,  tele- 
graphs, roads,  transport,  insurance,  &c.  —  beyond  a  line  start- 
ing from  Kasr-i-Shirin,  passing  through  Isfahan,  Yezd,  Kakhk, 
and  ending  at  a  point  on  the  Persian  frontier  at  the  intersection 
of  the  Russian  and  Afghan  frontiers,  and  not  to  oppose,  directly 
or  indirectly,  demands  for  similar  Concessions  in  this  region 
which  are  supported  by  the  Russian  Government.  It  is  under- 
stood that  the  above-mentioned  places  are  included  in  the  region 
in  which  Great  Britain  engages  not  to  seek  the  Concessions 
referred  to. 

II 

Russia,  on  her  part,  engages  not  to  seek  for  herself  and  not 
to  support,  in  favour  of  Russian  subjects,  or  in  favour  of  the 


236      AN   INTRODUCTION   TO  THE    STUDY   OF   GOVERNMENT 

subjects  of  third  Powers,  any  Concessions  of  a  political  or 
commercial  nature  —  such  as  Concessions  for  railways,  banks, 
telegraphs,  roads,  transport,  insurance,  &c.  —  beyond  a  line 
going  from  the  Afghan  frontier  by  way  of  Gazik,  Birjand,  Ker- 
man,  and  ending  at  Bunder  Abbas,  and  not  to  oppose,  directly 
or  indirectly,  demands  for  similar  Concessions  in  this  region 
which  are  supported  by  the  British  Government.  It  is  under- 
stood that  the  above-mentioned  places  are  included  in  the 
region  in  which  Russia  engages  not  to  seek  the  Concessions 
referred  to. 

Ill 

Russia,  on  her  part,  engages  not  to  oppose,  without  previous 
arrangement  with  Great  Britain,  the  grant  of  any  Concessions 
whatever  to  British  subjects  in  the  regions  of  Persia  situated 
between  the  lines  mentioned  in  Articles  I  and  II. 

Great  Britain  undertakes  a  similar  engagement  as  regards 
the  grant  of  Concessions  to  Russian  subjects  in  the  same  regions 
of  Persia. 

All  Concessions  existing  at  present  in  the  regions  indicated 
in  Articles  I  and  II  are  maintained. 

IV 

It  is  understood  that  the  revenues  of  all  the  Persian  customs, 
with  the  exception  of  those  of  Farsistan  and  of  the  Persian 
Gulf,  revenues  guaranteeing  the  amortization  and  the  interest 
of  the  loans  concluded  by  the  Government  of  the  Shah  with 
the  "Banque  d'Escompte  et  des  Prets  de  Perse"  up  to  the 
date  of  the  signature  of  the  present  Agreement,  shall  be  de- 
voted to  the  same  purpose  as  in  the  past. 

It  is  equally  understood  that  the  revenues  of  the  Persian 
customs  of  Farsistan  and  of  the  Persian  Gulf,  as  well  as  those 
of  the  fisheries  on  the  Persian  shore  of  the  Caspian  Sea  and 
those  of  the  Posts  and  Telegraphs,  shall  be  devoted,  as  in  the 
past,  to  the  service  of  the  loans  concluded  by  the  Government 
of  the  Shah  with  the  Imperial  Bank  of  Persia  up  to  the  date 
of  the  signature  of  the  present  Agreement. 


In  the  event  of  irregularities  occurring  in  the  amortization 
or  the  payment  of  the  interest  of  the  Persian  loans  concluded 
with  the  "Banque  d'Escompte  et  des  Prets  de  Perse"  and  with 


GOVERNMENT  OF  DEPENDENCIES         237 

the  Imperial  Bank  of  Persia  up  to  the  date  of  the  signature  of 
the  present  Agreement,  and  in  the  event  of  the  necessity  aris- 
ing for  Russia  to  establish  control  over  the  sources  of  revenue 
guaranteeing  the  regular  service  of  the  loans  concluded  with 
the  first-named  bank,  and  situated  in  the  region  mentioned 
in  Article  II  of  the  present  Agreement,  or  for  Great  Britain  to 
establish  control  over  the  sources  of  revenue  guaranteeing 
the  regular  service  of  the  loans  concluded  with  the  second-named 
bank,  and  situated  in  the  region  mentioned  in  Article  I  of  the 
present  Agreement,  the  British  and  Russian  Governments 
undertake  to  enter  beforehand  into  a  friendly  exchange  of  ideas 
with  a  view  to  determine,  in  agreement  with  each  other,  the 
measures  of  control  in  question  and  to  avoid  all  interference 
which  would  not  be  in  conformity  with  the  principles  govern- 
ing the  present  Agreement. 


THE  ORDINANCE  OF  1787 

An  Ordinance  for  the  Government  of  the  Territory  of  the  United 
States  Northwest  of  the  River  Ohio 

Be  it  ordained  by  the  United  States  in  Congress  assembled, 
that  the  said  territory,  for  the  purpose  of  temporary  govern- 
ment, be  one  district ;  subject,  however,  to  be  divided  into  two 
districts,  as  future  circumstances  may,  in  the  opinion  of  Con- 
gress, make  it  expedient. 

Be  it  ordained  by  the  authority  aforesaid,  that  the  estates 
both  of  resident  and  non-resident  proprietors  in  the  said  terri- 
tory, dying  intestate,  shall  descend  to,  and  be  distributed  among 
their  children,  and  the  descendants  of  a  deceased  child  in  equal 
parts;  the  descendants  of  a  deceased  child  or  grandchild,  to 
take  the  share  of  their  deceased  parent  in  equal  parts  among 
them;  and  where  there  shall  be  no  children  or  descendants, 
then  in  equal  parts  to  the  next  of  kin,  in  equal  degree;  and 
among  collaterals,  the  children  of  a  deceased  brother  or  sister 
of  the  intestate  shall  have  in  equal  parts  among  them  their 
deceased  parent's  share;  and  there  shall  in  no  case  be  a  dis- 
tinction between  kindred  of  the  whole  and  half  blood ;  saving 
in  all  cases  to  the  widow  of  the  intestate,  her  third  part  of  the 
real  estate  for  life,  and  one-third  part  of  the  personal  estate; 
and  this  law  relative  to  descents  and  dower,  shall  remain  in 
full  force  until  altered  by  the  legislature  of  the  district.  And 


238      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

until  the  governor  and  judges  shall  adopt  laws  as  hereinafter 
mentioned,  estates  in  the  said  territory  may  be  devised  or 
bequeathed  by  wills  in  writing,  signed  and  sealed  by  him  or 
her,  in  whom  the  estate  may  be  (being  of  full  age)  and  attested 
by  three  witnesses ;  and  real  estates  may  be  conveyed  by  lease  and 
release  or  bargain  and  sale  signed,  sealed  and  delivered  by  the 
person,  being  of  full  age,  in  whom  the  estate  may  be,  and  attested 
by  two  witnesses,  provided  such  wills  be  duly  proved,  and  such 
conveyances  be  acknowledged,  or  the  execution  thereof  duly 
proved,  and  be  recorded  within  one  year  after  proper  magis- 
trates, courts,  and  registers  shall  be  appointed  for  that  pur- 
pose; and  personal  property  may  be  transferred  by  delivery, 
saving,  however,  to  the  French  and  Canadian  inhabitants,  and 
other  settlers  of  the  Kaskaskias,  Saint  Vincents,  and  the  neigh- 
boring villages,  who  have  heretofore  professed  themselves 
citizens  of  Virginia,  their  laws  and  customs  now  in  force  among 
them,  relative  to  the  descent  and  conveyance  of  property. 

Be  it  ordained  by  the  authority  aforesaid  that  there  shall  be 
appointed  from  time  to  time,  by  Congress,  a  governor,  whose 
commission  shall  continue  in  force  for  the  term  of  three  years, 
unless  sooner  revoked  by  Congress ;  he  shall  reside  in  the  dis- 
trict, and  have  a  freehold  estate  therein,  in  one  thousand 
acres  of  land,  while  in  the  exercise  of  his  office. 

There  shall  be  appointed  from  time  to  time,  by  Congress,  a 
secretary,  whose  commission  shall  continue  in  force  for  four 
years,  unless  sooner  revoked;  he  shall  reside  in  the  district, 
and  have  a  freehold  estate  therein,  in  five  hundred  acres  of 
land,  while  in  the  exercise  of  his  office;  it  shall  be  his  duty 
to  keep  and  preserve  the  acts  and  laws  passed  by  the  legislature, 
and  the  public  records  of  the  district,  and  the  proceedings  of 
the  governor  in  his  executive  department;  and  transmit 
authentic  copies  of  such  acts  and  proceedings,  every  six  months, 
to  the  Secretary  of  Congress.  There  shall  also  be  appointed  a 
court  to  consist  of  three  judges,  any  two  of  whom  to  form  a 
court,  who  shall  have  a  common-law  jurisdiction,  and  reside 
in  the  district,  and  have  each  therein  a  freehold  estate  of  five 
hundred  acres  of  land,  while  in  the  exercise  of  their  offices; 
and  their  commissions  shall  continue  in  force  during  good  be- 
havior. 

The  governor  and  judges,  or  a  majority  of  them,  shall  adopt 
and  publish  in  the  district  such  laws  of  the  original  States,  crim- 
inal and  civil,  as  may  be  necessary,  and  best  suited  to  the  cir- 
cumstances of  the  district,  and  report  them  to  Congress,  from 


GOVERNMENT  OF  DEPENDENCIES         239 

time  to  time,  which  laws  shall  be  in  force  in  the  district  until 
the  organization  of  the  general  assembly  therein,  unless  dis- 
approved of  by  Congress ;  but  afterwards  the  legislature  shall 
have  authority  to  alter  them  as  they  shall  think  fit. 

The  governor,  for  the  time  being,  shall  be  commander-in- 
chief  of  the  militia,  appoint  and  commission  all  officers  in  the 
same,  below  the  rank  of  general  officers;  all  general  officers 
shall  be  appointed  and  commissioned  by  Congress. 

Previous  to  the  organization  of  the  general  assembly,  the 
governor  shall  appoint  such  magistrates  and  other  civil  officers, 
in  each  county  or  township,  as  he  shall  find  necessary  for  the 
preservation  of  the  peace  and  good  order  in  the  same.  After 
the  general  assembly  shall  be  organized,  the  powers  and  duties 
of  magistrates  and  other  civil  officers  shall  be  regulated  and 
defined  by  the  said  assembly;  but  all  magistrates  and  other 
civil  officers,  not  herein  otherwise  directed,  shall,  during  the 
continuance  of  this  temporary  government,  be  appointed  by 
the  governor. 

For  the  prevention  of  crimes  and  injuries,  the  laws  to  be 
adopted  or  made  shall  have  force  in  all  parts  of  the  district,  and 
for  the  execution  of  process,  criminal  and  civil,  the  governor 
shall  make  proper  divisions  thereof — and  he  shall  proceed  from 
time  to  time,  as  circumstances  may  require,  to  lay  out  the  parts 
of  the  district  in  which  the  Indian  titles  shall  have  been  extin- 
guished, into  counties  and  townships,  subject,  however,  to  such 
alterations  as  may  thereafter  be  made  by  the  legislature. 

So  soon  as  there  shall  be  five  thousand  free  male  inhabitants, 
of  full  age,  in  the  district,  upon  giving  proof  thereof  to  the  gov- 
ernor, they  shall  receive  authority,  with  time  and  place,  to 
elect  representatives  from  their  counties  or  townships,  to 
represent  them  in  the  general  assembly:  Provided,  That  for 
every  five  hundred  free  male  inhabitants  there  shall  be  one 
representative,  and  so  on,  progressively,  with  the  number  of 
free  male  inhabitants,  shall  the  right  of  representation  increase, 
until  the  number  of  representatives  shall  amount  to  twenty- 
five,  after  which  the  number  and  proportion  of  representatives 
shall  be  regulated  by  the  legislature ;  Provided,  That  no  per- 
son be  eligible  or  qualified  to  act  as  a  representative  unless  he 
shall  have  been  a  citizen  of  one  of  the  United  States  three  years, 
and  be  a  resident  in  the  district,  or  unless  he  shall  have  resided 
in  the  district  three  years,  and  in  either  case,  shall  likewise 
hold  in  his  own  right,  in  fee-simple,  two  hundred  acres  of  land 
within  the  same :  Provided  also,  That  a  freehold  in  fifty  acres 


240      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

of  land  in  the  district,  having  been  a  citizen  of  one  of  the  States, 
and  being  resident  in  the  district ;  or  the  like  freehold  and  two 
years'  residence  in  the  district  shall  be  necessary  to  qualify 
a  man  as  an  elector  of  a  representative. 

The  representatives  thus  elected,  shall  serve  for  the  term  of 
two  years,  and  in  case  of  the  death  of  a  representative,  or  re- 
moval from  office,  the  governor  shall  issue  a  writ  to  the  county 
or  township  for  which  he  was  a  member,  to  elect  another  in 
his  stead,  to  serve  for  the  residue  of  the  term.  The  general 
assembly,  or  legislature,  shall  consist  of  the  governor,  legisla- 
tive council,  and  a  house  of  representatives.  The  legislative 
council  shall  consist  of  five  members,  to  continue  in  office  five 
years,  unless  sooner  removed  by  Congress,  any  three  of  whom 
to  be  a  quorum,  and  the  members  of  the  council  shall  be  nomi- 
nated and  appointed  in  the  following  manner,  to  wit :  As  soon 
as  representatives  shall  be  elected,  the  governor  shall  appoint 
a  time  and  place  for  them  to  meet  together,  and,  when  met, 
they  shall  nominate  ten  persons,  resident  in  the  district,  and 
each  possessed  of  a  freehold  in  five  hundred  acres  of  land,  and 
return  their  names  to  Congress;  five  of  whom  Congress  shall 
appoint  and  commission  to  serve  as  aforesaid ;  and  whenever  a 
vacancy  shall  happen  in  the  council,  by  death  or  removal  from 
office,  the  house  of  representatives  shall  nominate  two  persons, 
qualified  as  aforesaid,  for  each  vacancy,  and  return  their  names 
to  Congress ;  one  of  whom  Congress  shall  appoint  and  commis- 
sion for  the  residue  of  the  term;  and  every  five  years,  four 
months  at  least  before  the  expiration  of  the  time  of  service  of 
the  members  of  the  council  the  said  house  shall  nominate  ten 
persons,  qualified  as  aforesaid,  and  return  their  names  to  Con- 
gress, five  of  whom  Congress  shall  appoint  and  commission  to 
serve  as  members  of  the  council  five  years,  unless  sooner  re- 
moved. And  the  governor,  legislative  council,  and  house  of 
representatives,  shall  have  authority  to  make  laws  in  all  cases 
for  good  government  of  the  district,  not  repugnant  to  the  prin- 
ciples and  articles  in  this  ordinance  established  and  declared. 
And  all  bills  having  passed  by  a  majority  in  the  house,  and  by 
a  majority  in  the  council,  shall  be  referred  to  the  governor  for 
his  assent ;  but  no  bills  or  legislative  act  whatever,  shall  be  of 
any  force  without  his  assent.  The  governor  shall  have  power 
to  convene,  prorogue  and  dissolve  the  general  assembly  when 
in  his  opinion,  it  shall  be  expedient. 

The  governor,  judges,  legislative  council,  secretary,  and  such 
other  officers  as  Congress  shall  appoint  in  the  district,  shall 


GOVERNMENT  OF  DEPENDENCIES  241 

take  an  oath  or  affirmation  of  fidelity,  and  of  office,  the  gov- 
ernor before  the  President  of  Congress,  and  all  other  officers 
before  the  governor.  As  soon  as  a  legislature  shall  be  formed 
in  the  district,  the  council  and  house,  assembled  in  one  room, 
shall  have  authority  by  joint  ballot,  to  elect  a  delegate  to 
Congress,  who  shall  have  a  seat  in  Congress,  with  a  right  of 
debating,  but  not  of  voting,  during  this  temporary  government. 

And  for  extending  the  fundamental  principles  of  civil  and 
religious  liberty,  which  forms  the  basis  whereon  these  repub- 
lics, their  laws  and  constitutions  are  elected ;  to  fix  and  estab- 
lish those  principles  as  the  basis  of  all  laws,  constitutions  and 
governments,  which  forever  hereafter  shall  be  formed  in  the 
said  territory ;  to  provide  also  for  the  establishment  of  States, 
and  permanent  government  therein,  and  for  their  admission 
to  a  share  in  the  Federal  councils  on  an  equal  footing  with  the 
original  States,  at  as  early  periods  as  may  be  consistent  with 
the  general  interest. 

It  is  hereby  ordained  and  declared,  by  the  authority  afore- 
said, that  the  following  articles  shall  be  considered  as  articles 
of  compact  between  the  original  States  and  the  people  and 
States  in  the  said  territory,  and  forever  remain  unalterable, 
unless  by  common  consent,  to  wit : 

ARTICLE  I.  No  person,  demeaning  himself  in  a  peaceable 
and  orderly  manner,  shall  ever  be  molested  on  account  of  his 
mode  of  worship  or  religious  sentiments  in  the  said  territory. 

ART.  II.  The  inhabitants  of  the  said  territory  shall  always 
be  entitled  to  the  benefits  of  the  writs  of  habeas  corpus,  and 
of  the  trial  by  jury ;  of  a  proportionate  representation  of  the 
people  in  the  legislature,  and  of  judicial  proceedings  accord- 
ing to  the  course  of  the  common  law ;  all  persons  shall  be  bail- 
able unless  for  capital  offenses  where  the  proof  shall  be  evident 
or  the  presumption  great ;  all  fines  shall  be  moderate,  and  no 
cruel  or  unusual  punishment  shall  be  inflicted ;  no  man  shall 
be  deprived  of  his  liberty  or  property  but  by  the  judgment  of 
his  peers,  or  the  law  of  the  land ;  and  should  the  public  exigen- 
cies make  it  necessary  for  the  common  preservation  to  take 
any  person's  property,  or  to  demand  his  particular  services, 
full  compensation  shall  be  made  for  the  same ;  and  in  the  just 
preservation  of  rights  and  property  it  is  understood  and  de- 
clared, that  no  law  ought  ever  to  be  made,  or  have  force  in  the 
said  territory,  that  shall  in  any  manner  whatever  interfere  with, 
or  affect  private  contracts,  or  engagements,  bona  fide  and  with- 
out fraud  previously  formed. 


242      AN   INTRODUCTION  TO  THE   STUDY  OF   GOVERNMENT 

ART.  III.  Religion,  morality  and  knowledge,  being  neces- 
sary to  good  government  and  the  happiness  of  mankind, 
schools  and  the  means  of  education  shall  forever  be  encouraged. 
The  utmost  good  faith  shall  always  be  observed  towards  the 
Indians ;  their  lands  and  property  shall  never  be  taken  from 
them  without  their  consent ;  and  in  their  property,  rights  and 
liberty,  they  never  shall  be  invaded  or  disturbed,  unless  in  just 
and  lawful  wars  authorized  by  Congress;  but  laws  founded 
in  justice  and  humanity  shall  from  time  to  time  be  made  for 
preventing  wrongs  being  done  to  them,  and  for  preserving  peace 
and  friendship  with  them. 

ART.  IV.  The  said  territory,  and  the  States  which  may  be 
formed  therein  shall  forever  remain  a  part  of  this  confederacy 
of  the  United  States  of  America,  subject  to  the  Articles  of  Con- 
federation, and  to  such  alterations  therein  as  shall  be  consti- 
tutionally made;  and  to  all  the  acts  and  ordinances  of  the 
United  States  in  Congress  assembled,  conformable  thereto. 
The  inhabitants  and  settlers  in  the  said  territory,  shall  be 
subject  to  pay  a  part  of  the  Federal  debts,  contracted  or  to  be 
contracted,  and  a  proportional  part  of  the  expenses  of  govern- 
ment, to  be  apportioned  on  them  by  Congress,  according  to 
the  same  common  rule  and  measure  by  which  apportionments 
thereof  shall  be  made  on  the  other  states;  and  the  taxes  for 
paying  their  proportion,  shall  be  laid  and  levied  by  the  author- 
ity and  direction  of  the  legislatures  of  the  district  or  districts, 
or  new  states  as  in  the  original  states,  within  the  time  agreed 
upon  by  the  United  States  in  Congress  assembled.  The  legis- 
latures of  those  districts,  or  new  States,  shall  never  interfere 
with  the  primary  disposal  of  the  soil  of  the  United  States  in 
Congress  assembled,  nor  with  any  regulations  Congress  may 
find  necessary  for  securing  the  titles  in  such  soil  to  the  bona 
fide  purchasers.  No  tax  shall  be  imposed  on  lands  the  property 
of  the  United  States;  and  in  no  case  shall  non-resident  pro- 
prietors be  taxed  higher  than  residents.  The  navigable  waters 
leading  into  the  Mississippi  and  Saint  Lawrence,  and  carrying 
places  between  the  same  shall  be  common  highways,  and  for- 
ever free,  as  well  to  the  inhabitants  of  the  said  Territory  as  to 
the  citizens  of  the  United  States,  and  those  of  any  other  states 
that  may  be  admitted  into  the  confederacy,  without  any  tax, 
impost,  or  duty  therefor. 

ART.  V.  There  shall  be  formed  in  the  said  Territory,  not 
less  than  three  nor  more  than  five  states ;  and  the  boundaries 
of  the  states,  as  soon  as  Virginia  shall  alter  her  act  of  cession 


GOVERNMENT  OF  DEPENDENCIES  243 

and  consent  to  the  same,  shall  become  fixed  and  established  as 
follows,  to  wit :  The  western  State,  in  the  said  Territory, 
shall  be  bounded  by  the  Mississippi,  the  Ohio,  and  the  Wabash 
Rivers ;  a  direct  line  drawn  from  the  Wabash  and  Post  Vincents, 
due  north,  to  the  territorial  line  between  the  United  States  and 
Canada;  and  by  the  said  territorial  line  to  the  Lake  of  the 
Woods  and  Mississippi.  The  middle  State  shall  be  bounded 
by  the  said  direct  line,  the  Wabash  from  Post  Vincents  to  the 
Ohio ;  by  the  Ohio,  by  a  direct  line  drawn  due  north  from  the 
mouth  of  the  Great  Miami  to  the  said  territorial  line,  and  by 
said  territorial  line.  The  eastern  State  shall  be  bounded  by 
the  last-mentioned  direct  line,  the  Ohio,  Pennsylvania,  and  the 
said  territorial  line :  Provided,  however,  and  it  is  further  under- 
stood and  declared,  that  the  boundaries  of  these  three  States 
shall  be  subject  so  far  to  be  altered,  that  if  Congress  shall  here- 
after find  it  expedient,  they  shall  have  authority  to  form  one 
or  two  States  in  that  part  of  the  said  territory  which  lies  north 
of  an  east  and  west  line  drawn  through  the  southerly  bend  or 
extreme  of  Lake  Michigan :  and  whenever  any  of  the  said 
states  shall  have  sixty  thousand  free  inhabitants  therein,  such 
State  shall  be  admitted  by  its  delegates  into  the  Congress  of 
the  United  States,  on  an  equal  footing  with  the  original  states, 
in  all  respects  whatsoever ;  and  shall  be  at  liberty  to  form  a  per- 
manent Constitution  and  State  government :  provided,  the 
Constitution  and  government  so  to  be  formed,  shall  be  repub- 
lican, and  in  conformity  to  the  principles  contained  in  these 
articles  and  so  far  as  it  can  be  consistent  with  the  general  inter- 
est of  the  confederacy,  such  admission  shall  be  allowed  at  an 
earlier  period,  and  when  there  may  be  a  less  number  of  free 
inhabitants  in  the  State  than  sixty  thousand. 

ART.  VI.  There  shall  be  neither  slavery  nor  involuntary  ser- 
vitude in  the  said  Territory,  otherwise  than  in  the  punishment 
of  crimes  whereof  the  party  shall  have  been  duly  convicted  :  pro- 
vided, always,  that  any  person  escaping  into  the  same,  from  whom 
labor  or  service  is  lawfully  claimed  in  any  one  of  the  original 
States,  such  fugitive  may  be  lawfully  reclaimed  and  conveyed 
to  the  person  claiming  his  or  her  labor  or  services  as  aforesaid. 

Be  it  ordained  by  the  authority  aforesaid,  that  the  resolutions 
of  the  23d  of  April,  1784,  relative  to  the  subject  of  this  ordinance, 
be,  and  the  same  are  hereby  repealed  and  declared  null  and  void. 

DONE  by  the  United  States  in  Congress  assembled,  the  13th 
day  of  July,  in  the  year  of  our  Lord  1787,  and  of  their  sover- 
eignty and  independence  the  12th.  CHA  THOMSON> 


244      AN   INTRODUCTION   TO   THE   STUDY  OF   GOVERNMENT 


THE  DECISION  IN  THE  INSULAR  CASES  (EXTRACTS) 
SUPREME  COURT  OF  THE  UNITED  STATES 


Samuel  B.  Downes,  doing  busi- 
ness under  the  firm  name  of 
S.  B.  Downes  &  Company, 
Plaintiffs  in  Error, 

vs. 
George  R.  Bidwell. 


In  error  to  the  Circuit  Court 
of  the  United  States  for  the 
Southern  District  of  New  York. 


(May  27,  1901) 

This  was  an  action  begun  in  the  Circuit  Court  by  Downes, 
doing  business  under  the  firm  name  of  S.  B.  Downes  &  Co., 
against  the  collector  of  the  port  of  New  York,  to  recover  back 
duties  to  the  amount  of  $659.35  exacted  and  paid  under  pro- 
test upon  certain  oranges  consigned  to  the  plaintiff  at  New  York, 
and  brought  thither  from  the  port  of  San  Juan  in  the  Island 
of  Porto  Rico  during  the  month  of  November,  1900,  after  the 
passage  of  the  act  temporarily  providing  a  civil  government 
and  revenues  for  the  Island  of  Porto  Rico,  known  as  the  For- 
aker  act. 

The  District  Attorney  demurred  to  the  complaint  for  the 
want  of  jurisdiction  in  the  court,  and  for  insufficiency  of  its 
averments.  The  demurrer  was  sustained,  and  the  complaint 
dismissed.  Whereupon  plaintiff  sued  out  this  writ  of  error. 

Mr.  Justice  BROWN  announced  the  conclusion  and  judgment 
of  the  Court.  .  .  . 

2.  In  the  case  of  De  Lima  v.  Bidwell,  just  decided,  we  held 
that  upon  the  ratification  of  the  treaty  of  peace  with  Spain, 
Porto  Rico  ceased  to  be  a  foreign  country,  and  became  a  terri- 
tory of  the  United  States,  and  that  duties  were  no  longer  col- 
lectible upon  merchandise  brought  from  that  island.  We 
are  now  asked  to  hold  that  it  became  a  part  of  the  United  States 
within  that  provision  of  the  Constitution  which  declares  that 
"all  duties,  imposts  and  excises  shall  be  uniform  throughout 
the  United  States."  (Art.  I,  sec.  8.)  If  Porto  Rico  be  part 
of  the  United  States,  the  Foraker  act  imposing  duties  upon 
its  products  is  unconstitutional,  not  only  by  reason  of  a  viola- 
tion of  the  uniformity  clause,  but  because  by  sec.  9  "vessels 


GOVERNMENT  OF  DEPENDENCIES         245 

bound  to  or  from  one  State"  cannot  "be  obliged  to  enter,  clear 
or  pay  duties  in  another." 

The  case  also  involves  the  broader  question  whether  the 
revenue  clauses  of  the  Constitution  extend  of  their  own  force 
to  our  newly  acquired  territories.  The  Constitution  itself  does 
not  answer  the  question.  Its  solution  must  be  found  in  the 
nature  of  the  government  created  by  that  instrument,  in  the 
opinion  of  its  contemporaries,  in  the  practical  construction 
put  upon  it  by  Congress  and  in  the  decisions  of  this  court. 

The  Federal  government  was  created  in  1777  by  the  union 
of  thirteen  colonies  of  Great  Britain  in  "  certain  articles  of  con- 
federation and  perpetual  union,"  the  first  one  of  which  de- 
clared that  "the  stile  of  this  confederacy  shall  be  the  United 
States  of  America."  Each  member  of  the  confederacy  was 
denominated  a  State.  Provision  was  made  for  the  representa- 
tion of  each  State  by  not  less  than  two  nor  more  than  seven 
delegates;  but  no  mention  was  made  of  territories  or  other 
lands,  except  in  Art.  XI,  which  authorized  the  admission  of 
Canada,  upon  its  "acceding  to  this  confederation,"  and  of  other 
colonies  if  such  admission  were  agreed  to  by  nine  States.  At 
this  time  several  States  made  claims  to  large  tracts  of  land  in 
the  unsettled  West,  which  they  were  at  first  indisposed  to  relin- 
quish. Disputes  over  these  lands  became  so  acrid  as  nearly  to 
defeat  the  confederacy,  before  it  was  fairly  put  in  operation. 
Several  of  the  States  refused  to  ratify  the  articles,  because  the 
convention  had  taken  no  steps  to  settle  the  titles  to  these  lands 
upon  principles  of  equity  and  sound  policy;  but  all  of  them, 
through  fear  of  being  accused  of  disloyalty,  finally  yielded  their 
claims,  though  Maryland  held  out  until  1781.  Most  of  these 
States  in  the  meantime  having  ceded  their  interests  in  these 
lands,  the  confederate  Congress,  in  1787,  created  the  first  terri- 
torial government  northwest  of  the  Ohio  River,  provided  for 
local  self-government,  a  bill  of  rights,  a  representation  in  Con- 
gress by  a  delegate,  who  should  have  a  seat  "with  a  right  of 
debating,  but  not  of  voting,"  and  for  the  ultimate  formation 
of  States  therefrom,  and  their  admission  into  the  Union  on  an 
equal  footing  with  the  original  States. 

The  confederacy,  owing  to  well-known  historical  reasons, 
having  proven  a  failure,  a  new  Constitution  was  formed  in 
1787  by  "the  people  of  the  United  States"  "for  the  United 
States  of  America,"  as  its  preamble  declares.  All  legislative 
powers  were  vested  in  a  Congress  consisting  of  representatives 
from  the  several  States,  but  no  provision  was  made  for  the  ad- 


246   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

mission  of  delegates  from  the  territories,  and  no  mention  was 
made  of  territories  as  separate  portions  of  the  Union,  except 
that  Congress  was  empowered  "to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States.7'  At  this  time  all 
of  the  States  had  ceded  their  unappropriated  lands  except 
North  Carolina  and  Georgia.  It  was  thought  by  Chief  Justice 
Taney  in  the  Dred  Scott  case,  (19  How.  393,  436,)  that  the  sole 
object  of  the  territorial  clause  was  "to  transfer  to  the  new  gov- 
ernment the  property  then  held  in  common  by  the  States,  and 
to  give  to  that  government  power  to  apply  it  to  the  objects  for 
which  it  had  been  destined  by  mutual  agreement  among  the 
States  before  their  league  was  dissolved;"  that  the  power 
"to  make  needful  rules  and  regulations"  was  not  intended 
to  give  the  powers  of  sovereignty,  or  to  authorize  the  establish- 
ment of  territorial  governments  —  in  short,  that  these  words 
were  used  in  a  proprietary  and  not  in  a  political  sense.  But, 
as  we  observed  in  De  Lima  v.  Bidwell,  the  power  to  establish 
territorial  governments  has  been  too  long  exercised  by  Con- 
gress and  acquiesced  in  by  this  court  to  be  deemed  an  unsettled 
question.  Indeed,  in  the  Dred  Scott  case  it  was  admitted  to 
be  the  inevitable  consequence  of  the  right  to  acquire  territory. 

It  is  sufficient  to  observe  in  relation  to  these  three  funda- 
mental instruments  that  it  can  nowhere  be  inferred  that  the 
territories  were  considered  a  part  of  the  United  States.  The 
Constitution  was  created  by  the  people  of  the  United  States, 
as  a  union  of  States,  to  be  governed  solely  by  representatives  of 
the  States;  and  even  the  provision  relied  upon  here,  that  all 
duties,  imposts  and  excises  shall  be  uniform  "throughout  the 
United  States,"  is  explained  by  subsequent  provisions  of  the 
Constitution,  that  "no  tax  or  duty  shall  be  laid  on  articles  ex- 
ported from  any  State,"  and  "no  preference  shall  be  given 
by  any  regulation  of  commerce  or  revenue  to  the  ports  of  one 
State  over  those  of  another ;  nor  shall  vessels  bound  to  or  from 
one  State  be  obliged  to  enter,  clear  or  pay  duties  in  another." 
In  short,  the  Constitution  deals  with  States,  their  people  and 
their  representatives. 

The  Thirteenth  Amendment  to  the  Constitution,  prohibit- 
ing slavery  and  involuntary  servitude  "within  the  United 
States,  or  in  any  place  subject  to  their  jurisdiction,"  is  also 
significant  as  showing  that  there  may  be  places  within  the  ju- 
risdiction of  the  United  States  that  are  not  part  of  the  Union. 
To  say  that  the  phraseology  of  this  amendment  was  due  to  the 


GOVERNMENT  OF  DEPENDENCIES         247 

fact  that  it  was  intended  to  prohibit  slavery  in  the  seceded 
States,  under  a  possible  interpretation  that  those  States  were 
no  longer  a  part  of  the  Union,  is  to  confess  the  very  point  in 
issue,  since  it  involves  an  admission  that,  if  these  States  were 
not  a  part  of  the  Union,  they  were  still  subject  to  the  jurisdic- 
tion of  the  United  States. 

Upon  the  other  hand,  the  Fourteenth  Amendment,  upon 
the  subject  of  citizenship,  declares  only  that  "all  persons  born 
or  naturalized  in  the  United  States,  and  subject  to  the  jurisdic- 
tion thereof,  are  citizens  of  the  United  States,  and  of  the  State 
wherein  they  reside."  Here  there  is  a  limitation  to  persons 
born  or  naturalized  in  the  United  States  which  is  not  extended 
to  persons  born  in  any  place  "subject  to  their  jurisdiction." 

The  question  of  the  legal  relations  between  the  States  and 
the  newly  acquired  territories  first  became  the  subject  of  public 
discussion  in  connection  with  the  purchase  of  Louisiana  in  1803. 
This  purchase  arose  primarily  from  the  fixed  policy  of  Spain 
to  exclude  all  foreign  commerce  from  the  Mississippi.  This 
restrictionybecome  intolerable  to  the  large  number  of  immigrants 
who  were  leaving  the  Eastern  States  to  settle  in  the  fertile 
valley  of  that  river  and  its  tributaries.  After  several  futile 
attempts  to  secure  the  free  navigation  of  that  river  by  treaty, 
advantage  was  taken  of  the  exhaustion  of  Spain  in  her  war  with 
France,  and  a  provision  inserted  in  the  treaty  of  October  27, 
1795,  by  which  the  Mississippi  River  was  opened  to  the  com- 
merce of  the  United  States.  (8  Stat.  138,  140,  Art.  IV.)  In 
October,  1800,  by  the  secret  treaty  of  San  Ildefonso,  Spain 
retroceded  to  France  the  territory  of  Louisiana.  This  treaty 
created  such  a  ferment  in  this  country  that  James  Monroe  was 
sent  as  minister  extraordinary  with  discretionary  powers  to 
cooperate  with  Livingston,  then  minister  to  France,  in  the  pur- 
chase of  New  Orleans,  for  which  Congress  appropriated 
$2,000,000.  To  the  surprise  of  the  negotiators,  Bonaparte 
invited  them  to  make  an  offer  for  the  whole  of  Louisiana  at  a 
price  finally  fixed  at  $15,000,000.  It  is  well  known  that  Mr. 
Jefferson  entertained  grave  doubts  as  to  his  power  to  make  the 
purchase,  or,  rather,  as  to  his  right  to  annex  the  territory  and 
make  it  part  of  the  United  States,  and  had  instructed  Mr.  Liv- 
ingston to  make  no  agreement  to  that  effect  in  the  treaty,  as 
he  believed  it  could  not  be  legally  done.  Owing  to  a  new  war 
between  England  and  France  being  upon  the  point  of  breaking 
put,  there  was  need  for  haste  in  the  negotiations,  and  Mr.  Liv- 
ingston took  the  responsibility  of  disobeying  his  instructions, 


248      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

and,  probably  owing  to  the  insistence  of  Bonaparte,  consented 
to  the  third  article  of  the  treaty,  which  provided  that  "the 
inhabitants  of  the  ceded  territory  shall  be  incorporated  in  the 
Union  of  the  United  States,  and  admitted  as  soon  as  possible, 
according  to  the  principles  of  the  Federal  Constitution,  to  the 
enjoyment  of  all  the  rights,  advantages  and  immunities  of 
citizens  of  the  United  States ;  and  in  the  meantime  they  shall 
be  maintained  and  protected  in  the  free  enjoyment  of  their 
liberty,  property  and  the  religion  which  they  profess."  This 
evidently  committed  the  government  to  the  ultimate,  but  not 
to  the  immediate,  admission  of  Louisiana  as  a  State,  and  post- 
poned its  incorporation  into  the  Union  to  the  pleasure  of  Con- 
gress. In  regard  to  this,  Mr.  Jefferson,  in  a  letter  to  Senator 
Breckinridge  of  Kentucky,  of  August  12,  1803,  used  the  fol- 
lowing language:  "This  treaty  must,  of  course,  be  laid  before 
both  houses,  because  both  have  important  functions  to  exer- 
cise respecting  it.  They,  I  presume,  will  see  their  duty  to  their 
country  in  ratifying  and  paying  for  it,  so  as  to  secure  a  good 
which  would  otherwise  probably  be  never  again  in  their  power. 
But  I  suppose  they  must  then  appeal  to  the  nation  for  an  addi- 
tional article  to  the  Constitution  approving  and  confirming 
an  act  which  the  nation  had  not  previously  authorized.  The 
Constitution  has  made  no  provision  for  holding  foreign  terri- 
tory, still  less  for  incorporating  foreign  nations  into  our  Union. 
The  Executive,  in  seizing  the  fugitive  occurrence  which  so  much 
advances  the  good  of  their  country,  have  done  an  act  beyond  the 
Constitution." 

To  cover  the  questions  raised  by  this  purchase  Mr.  Jefferson 
prepared  two  amendments  to  the  Constitution,  the  first  of 
which  declared  that  "the  province  of  Louisiana  is  incorporated 
with  the  United  States  and  made  part  thereof;"  and  the  sec- 
ond of  which  was  couched  in  a  little  different  language,  viz. : 
"Louisiana,  as  ceded  by  France  to  the  United  States,  is  made 
a  part  of  the  United  States.  Its  white  inhabitants  shall  be 
citizens,  and  stand,  as  to  their  rights  and  obligations,  on  the 
same  footing  as  other  citizens  in  analogous  situations."  But 
by  the  time  Congress  assembled,  October  17,  1803,  either  the 
argument  of  his  friends  or  the  pressing  necessity  of  the  situation 
seems  to  have  dispelled  his  doubts  regarding  his  power  under 
the  Constitution,  since  in  his  message  to  Congress  he  referred 
the  whole  matter  to  that  body,  saying  that  "with  the  wisdom 
of  Congress  it  will  rest  to  take  those  ulterior  measures  which 
may  be  necessary  for  the  immediate  occupation  and  tempo- 


GOVERNMENT  OF  DEPENDENCIES         249 

rary  government  of  the  country ;  for  its  incorporation  into  the 
Union."  ("  Jefferson's  Writings,"  vol.  8,  p.  269.)  .  .  . 

To  sustain  the  judgment  in  the  case  under  consideration  it 
by  no  means  becomes  necessary  to  show  that  none  of  the  arti- 
cles of  the  Constitution  apply  to  the  Island  of  Porto  Rico. 
There  is  a  clear  distinction  between  such  prohibitions  as  go  to 
the  very  root  of  the  power  of  Congress  to  act  at  all,  irrespective 
of  time  or  place,  and  such  as  are  operative  only  "throughout 
the  United  States"  or  among  the  several  States. 

Thus,  when  the  Constitution  declares  that  "no  bill  of  at- 
tainder or  ex  post  facto  law  shall  be  passed,"  and  that  "no 
title  of  nobility  shall  be  granted  by  the  United  States,"  it  goes 
to  the  competency  of  Congress  to  pass  a  bill  of  that  description. 
Perhaps,  the  same  remark  may  apply  to  the  First  Amendment, 
that  "Congress  shall  make  no  law  respecting  an  establishment 
of  religion,  or  prohibiting  the  free  exercise  thereof;  or  abridg- 
ing the  freedom  of  speech,  or  of  the  press ;  or  the  right  of  the 
people  to  peacefully  assemble,  and  to  petition  the  government 
for  a  redress  of  grievances."  We  do  not  wish,  however,  to  be 
understood  as  expressing  an  opinion  how  far  the  bill  of  rights 
contained  in  the  first  eight  amendments  is  of  general  and  how 
far  of  local  application. 

Upon  the  other  hand,  when  the  Constitution  declares  that 
all  duties  shall  be  uniform  "throughout  the  United  States," 
it  becomes  necessary  to  inquire  whether  there  be  any  territory 
over  which  Congress  has  jurisdiction  which  is  not  a  part  of  the 
"United  States,"  by  which  term  we  understand  the  States 
whose  people  united  to  form  the  Constitution,  and  such  as  have 
since  been  admitted  to  the  Union  upon  equality  with  them. 
Not  only  did  the  people  in  adopting  the  Thirteenth  Amend- 
ment thus  recognize  a  distinction  between  the  United  States 
and  "any  place  subject  to  their  jurisdiction,"  but  Congress 
itself,  in  the  act  of  March  27,  1804,  (2  Stat.  298,)  providing  for 
the  proof  of  public  records,  applied  the  provisions  of  the  act 
not  only  to  "every  court  and  office  within  the  United  States," 
but  to  the  "courts  and  offices  of  the  respective  territories  of 
the  United  States  and  countries  subject  to  the  jurisdiction  of 
the  United  States,"  as,  to  the  courts  and  offices  of  the  several 
States.  This  classification,  adopted  by  the  Eighth  Congress, 
is  carried  into  the  Revised  Statutes  as  follows : 

"SEC.  905.  The  acts  of  the  legislature  of  any  State  or  ter- 
ritory, or  of  any  country  subject  to  the  jurisdiction  of  the 
United  States,  shall  be  authenticated,"  &c. 


250      AN   INTRODUCTION  TO   THE   STUDY  OF  GOVERNMENT 

"SEC.  906.  All  records  and  exemplifications  of  books  which 
may  be  kept  in  any  public  office  of  any  State  or  territory,  or 
any  country  subject  to  the  jurisdiction  of  the  United  States," 
&c. 

Unless  these  words  are  to  be  rejected  as  meaningless,  we 
must  treat  them  as  a  recognition  by  Congress  of  the  fact  that 
there  may  be  territories  subject  to  the  jurisdiction  of  the 
United  States,  which  are  not  of  the  United  States. 

In  determining  the  meaning  of  the  words  of  Article  I,  section 
6,  "uniform  throughout  the  United  States,"  we  are  bound  to 
consider  not  only  the  provisions  forbidding  preference  being 
given  to  the  ports  of  one  State  over  those  of  another,  (to  which 
attention  has  already  been  called,)  but  the  other  clauses 
declaring  that  no  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State,  and  that  no  State  shall,  without  the  consent  of 
Congress,  lay  any  imposts  or  duties  upon  imports  or  exports, 
nor  any  duty  on  tonnage.  The  object  of  all  of  these  was  to 
protect  the  States  which  united  in  forming  the  Constitution 
from  discriminations  by  Congress,  which  would  operate  unfairly 
or  injuriously  upon  some  States  and  not  equally  upon  others. 
The  opinion  of  Mr.  Justice  White  in  Knowlton  v.  Moore  (178 
U.  S.  41)  contains  an  elaborate  historical  review  of  the  pro- 
ceedings in  the  Convention,  which  resulted  in  the  adoption 
of  these  different  clauses  and  their  arrangement,  and  he  there 
comes  to  the  conclusion  (p.  105)  that  "although  the  provision 
as  to  preference  between  ports  and  that  regarding  uniformity 
of  duties,  imposts  and  excises  were  one  in  purpose,  one  in  their 
adoption,"  they  were  originally  placed  together,  and  "became 
separate  only  in  arranging  the  Constitution  for  the  purpose 
of  style."  Thus  construed  together,  the  purpose  is  irresistible 
that  the  words  "throughout  the  United  States"  are  indistin- 
guishable from  the  words  "among  or  between  the  several 
States,"  and  that  these  prohibitions  were  intended  to  apply 
only  to  commerce  between  ports  of  the  several  States  as  they 
then  existed  or  should  thereafter  be  admitted  to  the  Union. 

Indeed,  the  practical  interpretation  put  by  Congress  upon 
the  Constitution  has  been  long  continued  and  uniform  to  the 
effect  that  the  Constitution  is  applicable  to  territories  acquired 
by  purchase  or  conquest  only  when  and  so  far  as  Congress  shall 
so  direct.  Notwithstanding  its  duty  to  "guarantee  to  every 
State  in  this  Union  a  republican  form  of  government,"  (Art. 
IV,  sec.  4,)  by  which  we  understand,  according  to  the  definition 
of  Webster,  "a  government  in  which  the  supreme  power 


GOVERNMENT  OF  DEPENDENCIES         251 

resides  in  the  whole  body  of  the  people,  and  is  exercised  by  rep- 
resentatives elected  by  them,"  Congress  did  not  hesitate,  in 
the  original  organization  of  the  territories  of  Louisiana,  Florida, 
the  Northwest  Territory,  and  its  subdivisions  of  Ohio,  Indiana, 
Michigan,  Illinois  and  Wisconsin,  and  still  more  recently  in 
the  case  of  Alaska,  to  establish  a  form  of  government  bearing 
a  much  greater  analogy  to  a  British  crown  colony  than  a  repub- 
lican State  of  America,  and  to  vest  the  legislative  power  either 
in  a  governor  and  council,  or  a  governor  and  judges,  to  be 
appointed  by  the  President.  It  was  not  until  they  had  at- 
tained a  certain  population  that  power  was  given  them  to  or- 
ganize a  legislature  by  vote  of  the  people.  In  all  these  cases, 
as  well  as  in  territories  subsequently  organized  west  of  the 
Mississippi,  Congress  thought  it  necessary  either  to  extend  the 
Constitution  and  laws  of  the  United  States  over  them,  or  to 
declare  that  the  inhabitants  should  be  entitled  to  enjoy  the 
right  of  trial  by  jury,  of  bail,  and  of  the  privilege  of  the  writ 
of  habeas  corpus,  as  well  as  other  privileges  of  the  bill  of  rights. 
We  are  also  of  opinion  that  the  power  to  acquire  territory  by 
treaty  implies  not  only  the  power  to  govern  such  territory, 
but  to  prescribe  upon  what  terms  the  United  States  will  receive 
its  inhabitants,  and  what  their  status  shall  be  in  what  Chief 
Justice  Marshall  termed  the  "  American  Empire."  There 
seems  to  be  no  middle  ground  between  this  position  and  the 
doctrine  that  if  their  inhabitants  do  not  become,  immediately 
upon  annexation,  citizens  of  the  United  States,  their  children 
thereafter  born,  whether  savages  or  civilized,  are  such,  and 
entitled  to  all  the  rights,  privileges  and  immunities  of  citizens. 
If  such  be  their  status,  the  consequences  will  be  extremely 
serious.  Indeed,  it  is  doubtful  if  Congress  would  ever  assent 
to  the  annexation  of  territory  upon  the  condition  that  its 
inhabitants,  however  foreign  they  may  be  to  our  habits,  tradi- 
tions and  modes  of  life,  shall  become  at  once  citizens  of  the 
United  States.  In  all  its  treaties  hitherto  the  treaty-making 
power  has  made  special  provision  for  this  subject ;  in  the  cases 
of  Louisiana  and  Florida,  by  stipulating  that  "the  inhabitants 
shall  be  incorporated  into  the  Union  of  the  United  States  and 
admitted  as  soon  as  possible  ...  to  the  enjoyment  of  all  the 
rights,  advantages  and  immunities  of  citizens  of  the  United 
States;"  in  the  case  of  Mexico,  that  they  should  "be  incorpo- 
rated into  the  Union,  and  be  admitted  at  the  proper  time,  (to 
be  judged  of  by  the  Congress  of  the  United  States,)  to  the 
enjoyment  of  all  the  rights  of  citizens  of  the  United  States;" 


252      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

in  the  case  of  Alaska,  that  the  inhabitants  who  remained  three 
years,  "with  the  exception  of  uncivilized  native  tribes,  shall 
be  admitted  to  the  enjoyment  of  all  the  rights,"  &c.;  and  in 
the  case  of  Porto  Rico  and  the  Philippines,  "that  the  civil 
rights  and  political  status  of  the  native  inhabitants  .  .  .  shall 
be  determined  by  Congress."  In  all  these  cases  there  is  an 
implied  denial  of  the  right  of  the  inhabitants  to  American  citi- 
zenship until  Congress  by  further  action  shall  signify  its  assent 
thereto. 

Grave  apprehensions  of  danger  are  felt  by  many  eminent 
men  —  a  fear  lest  an  unrestrained  possession  of  power  on  the 
part  of  Congress  may  lead  to  unjust  and  oppressive  legislation, 
in  which  the  natural  rights  of  territories,  or  their  inhabitants, 
may  be  engulfed  in  a  centralized  despotism.  These  fears, 
however,  find  no  justification  in  the  action  of  Congress  in  the 
past  century,  nor  in  the  conduct  of  the  British  Parliament 
towards  its  outlying  possessions  since  the  American  Revolu- 
tion. Indeed,  in  the  only  instance  in  which  this  court  has 
declared  an  act  of  Congress  unconstitutional  as  trespassing 
upon  the  rights  of  territories,  (the  Missouri  compromise,) 
such  action  was  dictated  by  motives  of  humanity  and  justice, 
and  so  far  commanded  popular  approval  as  to  be  embodied  in 
the  Thirteenth  Amendment  to  the  Constitution.  There  are 
certain  principles  of  natural  justice  inherent  in  the  Anglo-Saxon 
character  which  need  no  expression  in  constitutions  or  statutes 
to  give  them  effect  or  to  secure  dependencies  against  legisla- 
tion manifestly  hostile  to  their  real  interests.  Even  in  the 
Foraker  act  itself,  the  constitutionality  of  which  is  so  vigor- 
ously assailed,  power  was  given  to  the  legislative  assembly  of 
Porto  Rico  to  repeal  the  very  tariff  in  question  in  this  case,  a 
power  it  has  not  seen  fit  to  exercise.  The  words  of  Chief  Jus- 
tice Marshall  in  Gibbons  v.  Ogden,  (9  Wheat.  1,)  with  respect 
to  the  power  of  Congress  to  regulate  commerce,  are  pertinent 
in  this  connection:  "This  power,"  said  he,  "like  all  others 
vested  in  Congress,  is  complete  in  itself,  may  be  exercised  to  its 
utmost  extent,  and  acknowledges  no  limitations  other  than 
are  prescribed  in  the  Constitution.  .  .  .  The  wisdom  and 
discretion  of  Congress,  their  identity  with  the  people,  and  the 
influence  which  their  constituents  possess  at  elections  are  in 
this,  as  in  many  other  instances,  as  that,  for  example,  of  declar- 
ing war,  the  sole  restraints  on  which  they  have  relied  to  secure 
them  from  its  abuse.  They  are  the  restraints  which  the  people 
must  often  rely  on  solely  in  all  representative  governments." 


GOVERNMENT  OF  DEPENDENCIES         253 

So,  too,  in  Johnson  v.  Mclntosh,  (8  Wheat.  543,  583,)  it  was 
said  by  him : 

"The  title  by  conquest  is  acquired  and  maintained  by  force. 
The  conqueror  prescribes  its  limits.  Humanity,  however, 
acting  on  public  opinion,  has  established,  as  a  general  rule, 
that  the  conquered  shall  not  be  wantonly  oppressed,  and  that 
their  condition  shall  remain  as  eligible  as  is  compatible  with 
the  objects  of  the  conquest.  Most  usually  they  are  incor- 
porated with  the  victorious  nation  and  become  subjects  or 
citizens  of  the  government  with  which  they  are  connected. 
The  new  and  old  members  of  the  society  mingle  with  each  other ; 
the  distinction  between  them  is  gradually  lost,  and  they  make 
one  people.  Where  this  incorporation  is  practicable,  humanity 
demands,  and  a  wise  policy  requires,  that  the  rights  of  the 
conquered  to  property  should  remain  unimpaired;  that  the 
new  subjects  should  be  governed  as  equitably  as  the  old,  and 
that  confidence  in  their  security  should  gradually  banish  the 
painful  sense  of  being  separated  from  their  ancient  connec- 
tions and  united  by  force  to  strangers. 

"  When  the  conquest  is  complete,  and  the  conquered  inhabit- 
ants can  be  blended  with  the  conquerors,  or  safely  governed 
as  a  distinct  people,  public  opinion,  which  not  even  the  con- 
queror can  disregard,  imposes  these  restraints  upon  him ;  and 
he  cannot  neglect  them  without  injury  to  his  fame  and  hazard 
to  his  power." 

The  following  remarks  of  Mr.  Justice  White  in  the  case  of 
Knowlton  v.  Moore,  (178  U.  S.  109,)  in  which  the  court  upheld 
the  progressive  features  of  the  legacy  tax,  are  also  pertinent : 

"The  grave  consequences  which  it  is  asserted  must  arise  in 
the  future  if  the  right  to  levy  a  progressive  tax  be  recognized, 
involves  in  its  ultimate  aspect  the  mere  assertion  that  free  and 
representative  government  is  a  failure,  and  that  the  grossest 
abuses  of  power  are  foreshadowed  unless  the  courts  usurp  a 
purely  legislative  function.  If  a  case  should  ever  arise  where 
an  arbitrary  and  confiscatory  exaction  is  imposed,  bearing  the 
guise  of  a  progressive  or  any  other  form  of  tax,  it  will  be  time 
enough  to  consider  whether  the  judicial  power  can  afford  a 
remedy  by  applying  inherent  and  fundamental  principles  for 
the  protection  of  the  individual,  even  though  there  be  no 
express  authority  in  the  Constitution  to  do  so." 

It  is  obvious  that  in  the  annexation  of  outlying  and  distant 
possessions  grave  questions  will  arise  from  differences  of  race, 
habits,  laws  and  customs  of  the  people,  and  from  differences 


254      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

of  soil,  climate  and  production,  which  may  require  action  on 
the  part  of  Congress  that  would  be  quite  unnecessary  in  the 
annexation  of  contiguous  territory  inhabited  only  by  people 
of  the  same  race,  or  by  scattered  bodies  of  native  Indians. 

We  suggest,  without  intending  to  decide,  that  there  may  be 
a  distinction  between  certain  natural  rights,  enforced  in  the 
Constitution  by  prohibitions  against  interference  with  them, 
and  what  may  be  termed  artificial  or  remedial  rights,  which 
are  peculiar  to  our  own  system  of  jurisprudence.  Of  the  former 
class  are  the  rights  to  one's  own  religious  opinion  and  to  a 
public  expression  of  them,  or,  as  sometimes  said,  to  worship 
God  according  to  the  dictates  of  one's  own  conscience;  the 
right  to  personal  liberty  and  individual  property;  to  freedom 
of  speech  and  of  the  press;  to  free  access  to  courts  of  justice, 
to  due  process  of  law  and  to  an  equal  protection  of  the  laws ;  to 
immunities  from  unreasonable  searches  and  seizures,  as  well  as 
cruel  and  unusual  punishments;  and  to  such  other  immuni- 
ties as  are  indispensable  to  a  free  government.  Of  the  latter 
class  are  the  rights  to  citizenship,  to  suffrage,  (Minor  v.  Hap- 
persett,  21  Wall.  162,)  and  to  the  particular  methods  of  proce- 
dure pointed  out  in  the  Constitution,  which  are  peculiar  to 
Anglo-Saxon  jurisprudence,  and  some  of  which  have  already 
been  held  by  the  States  to  be  unnecessary  to  the  proper  pro- 
tection of  individuals. 

Whatever  may  be  finally  decided  by  the  American  people 
as  to  the  status  of  these  islands  and  their  inhabitants  —  whether 
they  shall  be  introduced  into  the  sisterhood  of  States  or  be  per- 
mitted to  form  independent  governments  —  it  does  not  follow 
that,  in  the  meantime,  awaiting  that  decision,  the  people  are 
in  the  matter  of  personal  rights  unprotected  by  the  provisions 
of  our  Constitution,  and  subject  to  the  merely  arbitrary  con- 
trol of  Congress.  Even  if  regarded  as  aliens,  they  are  entitled 
under  the  principles  of  the  Constitution  to  be  protected  in 
life,  liberty  and  property.  This  has  been  frequently  held  by 
this  court  in  respect  to  the  Chinese,  even  when  aliens,  not 
possessed  of  the  political  rights  of  citizens  of  the  United  States. 
(Yick  Wo  v.  Hopkins,  118  U.  S.  356;  Fong  Yue  Ting  v.  United 
States,  149  U.  S.  698;  Lem  Moon  Sing,  158  U.  S.  538,  547;' 
Wong  Wing  v.  United  States,  163  U.  S.  228.)  We  do  not  desire, 
however,  to  anticipate  the  difficulties  which  would  naturally 
arise  in  this  connection,  but  merely  to  disclaim  any  intention 
to  hold  that  the  inhabitants  of  these  territories  are  subject  to 
an  unrestrained  power  on  the  part  of  Congress  to  deal  with 


GOVERNMENT  OF  DEPENDENCIES         255 

them  upon  the  theory  that  they  have  no  rights  which  it  is  bound 
to  respect. 

Large  powers  must  necessarily  be  entrusted  to  Congress  in 
dealing  with  these  problems,  and  we  are  bound  to  assume  that 
they  will  be  judiciously  exercised.  That  these  powers  may  be 
abused  is  possible.  But  the  same  may  be  said  of  its  powers 
under  the  Constitution  as  well  as  outside  of  it.  Human  wis- 
dom has  never  devised  a  form  of  government  so  perfect  that  it 
may  not  be  perverted  to  bad  purposes.  It  is  never  conclusive 
to  argue  against  the  possession  of  certain  powers  from  the  pos- 
sible abuses  of  them.  It  is  safe  to  say  that  if  Congress  should 
venture  upon  legislation  manifestly  dictated  by  selfish  interests, 
it  would  receive  quick  rebuke  at  the  hands  of  the  people. 
Indeed,  it  is  scarcely  possible  that  Congress  could  do  a  greater 
injustice  to  these  islands  than  would  be  involved  in  holding 
that  it  could  not  impose  upon  the  States  taxes  and  excises  with- 
out extending  the  same  taxes  to  them.  Such  requirement 
would  bring  them  at  once  within  our  internal  revenue  system, 
including  stamps,  licenses,  excises  and  all  the  paraphernalia 
of  that  system,  and  applying  it  to  territories  which  have  had 
no  experience  of  this  kind,  and  where  it  would  prove  an  intol- 
erable burden. 

This  subject  was  carefully  considered  by  the  Senate  com- 
mittee in  charge  of  the  Foraker  bill,  which  found,  after  an  ex- 
amination of  the  facts,  that  property  in  Porto  Rico  was  al- 
ready burdened  with  a  private  debt  amounting  probably  to 
$30,000,000 ;  that  no  system  of  property  taxation  was  or  ever 
had  been  in  force  in  the  island,  and  that  it  probably  would 
require  two  years  to  inaugurate  one  and  secure  returns  from 
it ;  that  the  revenues  had  always  been  chiefly  raised  by  duties 
on  imports  and  exports,  and  that  our  internal  revenue  laws,  if 
applied  in  that  island,  would  prove  oppressive  and  ruinous  to 
many  people  and  interests;  that  to  undertake  to  collect  our 
heavy  internal  revenue  tax,  far  heavier  than  Spain  ever  imposed 
upon  their  products  and  vocations,  would  be  to  invite  viola- 
tions of  the  law  so  innumerable  as  to  make  prosecutions  impos- 
sible, and  to  almost  certainly  alienate  and  destroy  the  friend- 
ship and  good  will  of  that  people  for  the  United  States. 

In  passing  upon  the  questions  involved  in  this  and  kindred 
cases,  we  ought  not  to  overlook  the  fact  that,  while  the  Consti- 
tution was  intended  to  establish  a  permanent  form  of  govern- 
ment for  the  States  which  should  elect  to  take  advantage  of 
its  conditions,  and  continue  for  an  indefinite  future,  the  vast 


256      AN   INTRODUCTION   TO   THE   STUDY  OF  GOVERNMENT 

possibilities  of  that  future  could  never  have  entered  the  minds 
of  its  framers.  The  States  had  but  recently  emerged  from  a 
war  with  one  of  the  most  powerful  nations  of  Europe ;  were 
disheartened  by  the  failure  of  the  confederacy,  and  were  doubt- 
ful as  to  the  feasibility  of  a  stronger  union.  Their  territory  was 
confined  to  a  narrow  strip  of  land  on  the  Atlantic  coast  from 
Canada  to  Florida,  with  a  somewhat  indefinite  claim  to  terri- 
tory beyond  the  Alleghanies,  where  their  sovereignty  was  dis- 
puted by  tribes  of  hostile  Indians  supported,  as  was  popularly 
believed,  by  the  British,  who  had  never  formally  delivered 
possession  under  the  treaty  of  peace.  The  vast  territory  be- 
yond the  Mississippi,  which  formerly  had  been  claimed  by 
France,  since  1762  had  belonged  to  Spain,  still  a  powerful  na- 
tion, and  the  owner  of  a  great  part  of  the  Western  Hemisphere. 
Under  these  circumstances  it  is  little  wonder  that  the  question 
of  annexing  these  territories  was  not  made  a  subject  of  debate. 
The  difficulties  of  bringing  about  a  union  of  the  States  were  so 
great,  the  objections  to  it  seemed  so  formidable,  that  the  whole 
thought  of  the  convention  centered  upon  surmounting  these 
obstacles.  The  question  of  territories  was  dismissed  with  a 
single  clause,  apparently  applicable  only  to  the  territories  then 
existing,  giving  Congress  the  power  to  govern  and  dispose  of 
them. 

Had  the  acquisition  of  other  territories  been  contemplated 
as  a  possibility,  could  it  have  been  foreseen  that,  within  little 
more  than  one  hundred  years,  we  were  destined  to  acquire  not 
only  the  whole  vast  region  between  the  Atlantic  and  Pacific 
Oceans,  but  the  Russian  possessions  in  America  and  distant 
islands  in  the  Pacific,  it  is  incredible  that  no  provision  should 
have  been  made  for  them,  and  the  question  whether  the  Consti- 
tution should  or  should  not  extend  to  them  have  been  definitely 
settled.  If  it  be  once  conceded  that  we  are  at  liberty  to  acquire 
foreign  territory,  a  presumption  arises  that  our  power  with 
respect  to  such  territories  is  the  same  power  which  other  nations 
have  been  accustomed  to  exercise  with  respect  to  territories 
acquired  by  them.  If,  in  limiting  the  power  which  Congress 
was  to  exercise  within  the  United  States,  it  was  also  intended 
to  limit  it  with  regard  to  such  territories  as  the  people  of  the 
United  States  should  thereafter  acquire,  such  limitations  should 
have  been  expressed.  Instead  of  that,  we  find  the  Constitu- 
tion speaking  only  to  States,  except  in  the  territorial  clause, 
which  is  absolute  in  its  terms,  and  suggestive  of  no  limitations 
upon  the  power  of  Congress  in  dealing  with  them.  The  States 


GOVERNMENT  OF  DEPENDENCIES        257 

could  only  delegate  to  Congress  such  powers  as  they  themselves 
possessed,  and  as  they  had  no  power  to  acquire  new  territory, 
they  had  none  to  delegate  hi  that  connection.  The  logical 
inference  from  this  is,  that  if  Congress  had  power  to  acquire 
new  territory,  which  is  conceded,  that  power  was  not  ham- 
pered by  the  constitutional  provisions.  If,  upon  the  other 
hand,  we  assume  that  the  territorial  clause  of  the  Constitution 
was  not  intended  to  be  restricted  to  such  territory  as  the  United 
States  then  possessed,  there  is  nothing  in  the  Constitution 
to  indicate  that  the  power  of  Congress  in  dealing  with  them 
was  intended  to  be  restricted  by  any  of  the  other  provisions. 

There  is  a  provision  that  "new  States  may  be  admitted  by 
the  Congress  into  this  Union."  These  words,  of  course,  carry 
the  Constitution  with  them,  but  nothing  is  said  regarding  the 
acquisition  of  new  territories  or  the  extension  of  the  Constitu- 
tion over  them.  The  liberality  of  Congress  in  legislating  the 
Constitution  into  all  our  contiguous  territories  has  undoubtedly 
fostered  the  impression  that  it  went  there  by  its  own  force, 
but  there  is  nothing  in  the  Constitution  itself,  and  little  in  the 
interpretation  put  upon  it,  to  confirm  that  impression.  There 
is  not  even  an  analogy  to  the  provisions  of  an  ordinary  mort- 
gage for  its  attachment  to  after-acquired  property,  without 
which  it  covers  only  property  existing  at  the  date  of  the  mort- 
gage. In  short,  there  is  absolute  silence  upon  the  subject. 
The  executive  and  legislative  departments  of  the  government 
have  for  more  than  a  century  interpreted  this  silence  as  pre- 
cluding the  idea  that  the  Constitution  attached  to  these  terri- 
tories as  soon  as  acquired,  and  unless  such  interpretation  be 
manifestly  contrary  to  the  letter  or  spirit  of  the  Constitution, 
it  should  be  followed  by  the  judicial  department.  (Cooley's 
Const.  Lim.  sees.  81  to  85.  Lithographic  Co.  v.  Sarony,  111 
U.  S.  53,  57 ;  Field  v.  Clark,  143  U.  S.  649,  691.) 

Patriotic  and  intelligent  men  may  differ  widely  as  to  the 
desirableness  of  this  or  that  acquisition,  but  this  is  solely  a 
political  question.  We  can  only  consider  this  aspect  of  the 
case  so  far  as  to  say  that  no  construction  of  the  Constitution 
should  be  adopted  which  would  prevent  Congress  from  consider- 
ing each  case  upon  its  merits,  unless  the  language  of  the  instru- 
ment imperatively  demand  it.  A  false  step  at  this  time  might 
be  fatal  to  the  development  of  what  Chief  Justice  Marshall 
called  the  American  Empire.  Choice  in  some  cases,  the  natu- 
ral gravitation  of  small  bodies  towards  large  ones  in  others, 
the  result  of  a  successful  war  in  still  others,  may  bring  about 


258      AN  INTRODUCTION   TO  THE   STUDY  OF  GOVERNMENT 

conditions  which  would  render  the  annexation  of  distant  pos- 
sessions desirable.  If  those  possessions  are  inhabited  by  alien 
races,  differing  from  us  in  religion,  customs,  laws,  methods  of 
taxation  and  modes  of  thought,  the  administration  of  govern- 
ment and  justice,  according  to  Anglo-Saxon  principles,  may 
for  a  time  be  impossible ;  and  the  question  at  once  arises  whether 
large  concessions  ought  not  to  be  made  for  a  time,  that,  ulti- 
mately, our  own  theories  may  be  carried  out,  and  the  blessings 
of  a  free  government  under  the  Constitution  extended  to  them. 
We  decline  to  hold  that  there  is  anything  in  the  Constitution 
to  forbid  such  action. 

We  are  therefore  of  opinion  that  the  Island  of  Porto  Rico 
is  a  territory  appurtenant  and  belonging  to  the  United  States, 
but  not  a  part  of  the  United  States  within  the  revenue  clauses 
of  the  Constitution;  that  the  Foraker  act  is  constitutional, 
so  far  as  it  imposes  duties  upon  imports  from  such  island, 
and  that  the  plaintiff  cannot  recover  back  the  duties  exacted 
in  this  case. 

The  judgment  of  the  Circuit  Court  is  therefore 

Affirmed. 
True  copy. 

Test: 

Clerk  Supreme  Court,  U.  S. 

(Cited  from  "Opinions  Delivered  in  the  Insular  Tariff  Cases 
in  the  Supreme  Court  of  the  United  States,"  May  27,  1901. 
Washington :  Government  Printing  Office.) 


CHAPTER  XI 
THE  FUNCTIONS  OF  GOVERNMENT 

GOVEKNMENT,  we  stated  in  the  opening  chapter,  is  the 
organization  within  a  state  for  the  purpose  of  maintaining  in- 
ternal peace  and  order,  for  the  general  welfare  of  the  The  func_ 
people,  and  preserving  the  national  independence  tions  of 
from  foreign  aggression.  It  follows  logically  that  s°verament- 
the  functions  which  governments  should  exercise  should  be 
those  which  most  perfectly  secure  this  internal  peace  and 
order  and  general  welfare,  and  this  protection  from  external 
attack.  Conditions  in  one  state  may  warrant  the  government 
in  assuming  more  extensive  functions  than  are  assumed  by  the 
government  of  a  neighboring  state ;  in  times  of  great  national 
peril,  any  government  may  assume  much  greater  functions 
than  it  would  assume  under  ordinary  circumstances;  but  in 
all  cases  and  at  all  times  the  sole  justification  for  the  functions 
which  a  state  exercises  is  the  preservation  of  peace  and  order 
within  its  boundaries  to  further  the  general  welfare  of  its 
people,  and  the  insurance  of  safety  from  external  aggression. 

I.   INDIVIDUALIST  THEORIES 

Radically  different  theories  of  the  functions  of  the  govern- 
ment  under   ordinary   circumstances   are    held   by   different 
thinkers.     A  few  generations  ago  a  group  of  writers 
advocated  the  limitation  of  governmental  powers  theories  of 
and   functions  so  far  as  possible.     These  "individ-  thefunc- 
ualists,"   as  they  are  called,  contended  that  govern-  government: 
ment  is  a  necessary  evil,  only  to  be  endured  because,  ladividual- 
without  the  restraints  imposed  by  government,  the 
crimes  of  certain  members  of  the  community  might  threaten 

259 


260      AN   INTRODUCTION  TO  THE   STUDY   OF   GOVERNMENT 

the  peace  and  security  of  all.  The  only  chance  for  the  full 
and  proper  development  of  the  individual  depended  upon  non- 
interference by  the  government.  Every  function  exercised 
by  the  government  was,  according  to  these  thinkers,  an  infringe- 
ment on  the  natural  inherent  liberty  of  the  individual.  If  it  were 
not  for  the  inborn  selfishness  of  man,  whereby  he  sought 
commonly  to  elevate  himself  at  the  expense  of  his  fellow 
human  beings,  government  would  be  unnecessary  and  men 
would  be  allowed  to  develop  their  capacities  to  their  fullest 
without  restraint. 

What,  then,  would  be  the  condition  of  affairs  in  an  individ- 
ualistic state?  Government  would  exist  only  as  a  police 
The  Individ-  department  to  punish  crime,  to  provide  for  the 
uaiistic  maintenance  of  peace  and  order,  and  to  enforce 
contractual  obligations.  There  would  be  no  gov- 
ernmental ownership  of  railroads,  of  telegraphs,  or  even  (ac- 
cording to  some)  of  the  post  office  ;  no  governmental  regulation 
of  corporations  or  of  labor  ;  no  governmental  support  of  libra- 
ries, museums,  and  the  like  ;  no  provision  by  the  government 
for  public  education,  health,  or  sanitation  :  —  such  functions 
of  the  government  are  to  be  condemned,  according  to  the  in- 
dividualists, as  infringing  upon  private  enterprise  or  encroach- 
ing upon  private  liberty. 

The  individualists  argued  for  their  ideas  by  emphasizing  the 

evils  of  over-government  in  paralyzing  men's  initiative,  and  by 

pointing  to  the  analogy  of  the  natural  world  where 

for  individ-    the  principle  of  the  "  survival  of  the  fittest"  re- 


suited  (they  claimed)  in  the  evolution  of  a  higher 
type  of  being.  Where  men  become  accustomed  to 
look  to  the  government  for  help,  they  lose  the  ability  to  help 
themselves  and  tend  to  degenerate.  Allow  a  free  competition 
without  governmental  assistance,  and  the  individual  strains 
to  his  utmost  capacity  to  survive  in  the  struggle  and  thus 
develops  his  powers  more  and  more.  The  superman,  the 
ideal  man  of  a  type  above  what  we  know  at  present,  is  only 
to  be  evolved,  they  asserted,  under  such  conditions. 


THE   FUNCTIONS   OF   GOVERNMENT  261 

The  most  fundamental  weakness  in  the  individualistic  theory 
lies  hi  its  emphasis  upon  the  development  of  man  as  opposed 
to  the  welfare  of  the  whole  group  of  men.  Govern- 
ment  is  not  an  organization  for  the  sole  purpose  of  Of  individ- 
evolving  a  few  supreme  individuals :  it  is  rather  an  ualistic 
organization  to  secure  conditions  under  which  the 
general  welfare  of  the  whole  people  is  furthered.  With  the 
results  of  the  Industrial  Revolution  —  the  sudden  growth 
of  huge  cities  with  their  new  problems  of  public  health,  sani- 
tation, transportation,  and  the  like,  the  building  of  great 
factories  housing  the  machinery  which  the  workmen  needed 
in  order  to  make  a  living,  the  amassing  of  immense  fortunes 
which  gave  the  possessor  overmuch  power  for  good  or  for  ill  — 
a  reaction  against  the  individualistic  theories  set  in.  The 
welfare  of  the  whole  group  required  that  strict  sanitary  regu- 
lations be  imposed  upon  each  person  for  the  benefit  of  all  per- 
sons, that  regulations  be  imposed  upon  the  individual  factory 
owner  to  protect  the  relatively  helpless  mass  of  workers,  that 
the  ignorant  be  protected  by  governmental  regulation  from 
the  results  of  their  own  ignorance ;  in  short,  that  the  govern- 
ment act  more  and  more  as  the  trustee  of  the  people  as  a  whole 
to  administer  the  aggregate  power  of  the  state  for  the  general 
welfare.  With  the  spread  of  liberalism  to  the  extent  that  the 
people  actually  do  exercise  a  control  over  their  government, 
the  former  distrust  of  government  has  naturally  disappeared. 
When  the  government  owns  or  manages  the  railroads  or  supply 
plants,  when  the  government  introduces  a  system  of  compul- 
sory education,  when  the  government  establishes  a  great  library 
or  museum,  or  equips  scientific  expeditions,  the  people  no 
longer  are  inclined  to  condemn  these  activities  as  encroach- 
ments upon  individual  enterprise,  but  to  welcome  them  as 
the  acts  of  their  own  collective  agency  intended  for  their  own 
collective  benefit.  The  doctrines  of  the  individualists  are 
discredited  at  the  present  time. 


262      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


II.  SOCIALIST  THEORIES 

The  exact  antithesis  of  the  individualistic  theory  of  the 
Socialistic      functions  of  government  is  the  socialistic.     Whereas 


theory  of  fae  individualist  believes  in  the  minimum  of  govern- 
tions  of  ment,  the  socialist  believes  in  the  maximum  ;  whereas 
government.  tne  individualist  looked  upon  government  as  a  neces- 
sary evil,  the  socialist  looks  upon  it  as  the  supreme  good. 

Socialism  pictures  the  government  as  owning  all  the  means 
of  production,  communication,  transportation,  and  distribution. 
Thus  all  the  land,  mines,  water  supplies,  forests,  gas  supply 
plants,  power  plants,  and  the  like  would  belong  directly  to  the 
government;  all  the  telegraph  and  telephone  lines  would 
belong  to  the  government;  all  the  railroads,  trolley  lines, 
steamship  lines,  and  stage  lines  would  belong  to  the  govern- 
ment; and  all  the  wholesale  and  retail  markets,  stores,  and 
shops  would  belong  to  the  government.  To  work  these  va- 
rious agencies,  all  the  people  of  the  state  would  be  organized 
by,  and  be  under  the  control  of,  the  government.  The  govern- 
ment would  be  the  sole  employer  of  labor.  The  socialistic 
state  would  be  a  huge  cooperative  community  under  govern- 
ment management.  Government  ownership  and  organization, 
and  general  cooperation  among  the  people  of  the  state,  are 
the  essential  features  of  the  socialist  theory. 
The  social-  What,  then,  would  be  the  system  in  the  ideal 
ist  state.  socialist  state? 

Politically,  it  would  be  more  nearly  a  perfect  democracy 
than  any  with  which  we  are  familiar.  The  initiative,  referen- 
dum, and  recall,  the  most  effective  measures  for  accurate 
representation  of  all  sections  of  the  community,  entire  respon- 
sibility of  every  official  of  the  government  at  any  and  all  times 
to  the  people,  —  such  devices  would  be  introduced  to  insure 
democracy. 

Economically,  the  socialist  proposes  to  replace  the  present 
competitive  system  of  private  capital  with  a  system  by  which 
the  community  shall  own  the  means  of  production  and  dis- 


THE   FUNCTIONS  OF  GOVERNMENT  263 

tribution  and  shall  use  these  for  its  own  benefit.  The  com- 
munity is  to  be  organized  into  labor  forces  for  production  and 
to  each  laborer  is  to  be  distributed  a  part  of  the  production 
proportionate  to  the  amount  of  labor  performed.  Workmen 
will  still  be  workmen,  but  they  will  be  working  for  the  state 
with  tools  belonging  to  the  state  and  will  be  paid  the  full  value 
of  their  labor  by  the  state,  instead  of  working  for  the  individual 
capitalist  with  tools  belonging  to  the  capitalist  and  being 
paid  by  the  capitalist  a  sum  less  than  the  full  value  of  his  pro- 
duction. "Surplus  value"  (i.e.  the  value  of  the  completed 
product  over  and  above  the  cost  of  production),  which  formerly 
constituted  profits  for  the  capitalist,  will  cease  to  exist ;  wages 
as  such  will  be  transmuted  into  an  income  representing  a  share 
in  the  national  production  exactly  proportioned  to  the  individual's 
share  in  that  production.  All  workers,  whether  directly  produc- 
ing articles  of  consumption  such  as  wheat,  corn,  meat,  cotton,  or 
whether  of  service  to  the  community  as  lawyers,  musicians, 
teachers,  will  receive  a  share  of  the  total  production  directly 
proportioned  to  the  time  they  have  spent  in  work  for  the  com- 
munity. Furthermore,  income  from  other  sources  than  labor 
performed  will  not  be  possible  under  the  socialist  system. 
The  use  of  property  as  a  means  of  getting  more  property,  as 
by  loaning  it  for  interest,  or  (what  is  equivalent)  investing  it 
in  stocks  with  the  expectation  of  receiving  dividends,  or  build- 
ing houses  to  rent  to  others,  is  absolutely  forbidden  under  the 
socialist  system,  whereby  the  only  source  of  income  shall  be 
labor.  The  results  must  be,  the  socialists  claim,  a  practical 
equality  in  income. 

The  socialist  government  will  be  systematized  in  vast  de- 
partments. The  department  of  production,  by  means  of 
monthly  and  yearly  statistics  collected  from  all  sections  of  the 
community,  will  estimate  the  amount  of  each  product  neces- 
sary, —  the  amount  of  food  products,  cloth  products,  building 
material,  manufactured  products,  etc.  With  this  determined 
in  advance  in  the  form  of  a  huge  budget,  the  department 
will  apportion  to  the  different  communities  their  labor  of  pro- 


264      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVEKNMENT 

duction,  whether  agricultural  or  mechanical.  A  department 
of  distribution  will  undertake  all  the  complicated  wholesale 
and  retail  businesses  of  the  system  familiar  to  us.  It  will 
take  the  products  from  the  department  of  production,  arrange 
with  the  department  of  transportation  for  their  delivery  into 
certain  central  warehouses,  and  prepare  to  distribute  to  each 
citizen  his  pro  rat  a  proportion  of  the  material.  The  depart- 
ment of  labor  will  have  the  huge  task  of  apportioning  the 
masses  of  people  to  the  necessary  tasks  for  production,  trans- 
portation, and  distribution  of  goods.  The  workmen  will 
theoretically  be  free  to  choose  which  field  they  wish  to  enter, 
but  in  case  too  many  apply  for  one  field  and  too  few  for  another, 
the  labor  department  will  be  justified  in  lowering  the  value  of 
an  hour's  labor  in  the  former  in  order  to  repel  workmen  and 
in  increasing  the  value  of  an  hour's  labor  in  the  latter  in  order 
to  attract  workmen.  A  large  group  of  socialists  advocate  the 
abolition  of  money :  payment  for  labor  is  to  be  in  the  form 
of  labor  checks,  exchangeable  for  commodities  at  the  public 
storehouse.  Other  departments,  many  of  them,  and  bureaus 
as  subdivisions  of  the  departments,  will  be  necessary  to  manage 
the  complicated  affairs  and  meet  the  manifold  needs  of  a  nation 
of  a  hundred  millions  of  people :  the  rough  outline  which  has 
been  given  of  three  of  these  will,  however,  serve  to  indicate 
the  radical  change  in  economic  conditions  proposed  by  socialism. 
Socially,  the  change  which  the  socialist  claims  will  result 
from  the  proposed  system  is  equally  radical.  With  the  aboli- 
tion of  any  form  of  income  except  that  obtained  from  labor 
performed,  and  with  the  establishment  of  the  ideal  democracy, 
the  social  inequalities  due  to  great  wealth  must  inevitably 
disappear.  The  individual  may  save  and  thus  accumulate 
for  himself  or  his  family  some  wealth,  but  with  the  opportuni- 
ties removed  for  the  investing  of  that  wealth  to  obtain  other 
wealth  in  the  form  of  interest,  rent,  or  dividend,  his  wealth 
only  temporarily  can  raise  him  or  his  family  above  the  common 
necessity  of  labor.  The  economic  equality  thus  introduced 
spells  social  equality  and  equal  opportunity  for  all. 


THE   FUNCTIONS  OF  GOVERNMENT  265 

The  above  picture  of  the  ideal  socialist  state  is  attractive; 
there  are,  however,  greater  difficulties  in  the  way  Difficulties 
than  the  socialists  seem  willing  to  admit.  in  carrying 

out  the 

The  destruction  of  private  ownership  in  pro-  socialistic 
ductive  property  is  certain  to  remove  one  of  the  scheme- 
sharpest  spurs  to  individual  incentive.  It  can  hardly  be 
denied  that  the  accumulation  of  sufficient  capital  to  provide 
an  income  for  old  age,  or  to  insure  the  care  of  one's  family  in 
the  event  of  one's  death,  or  to  widen  one's  social  opportuni- 
ties, is  at  present  an  incentive  to  many  men  to  put  forth  their 
utmost  efforts  in  labor.  If  the  possibility  of  such  income  be 
removed,  if  the  earnest,  self-sacrificing  man  be  paid  with  the 
same  labor-check  you  give  to  the  indifferent  and  lazy,  it  is  too 
much  to  expect  of  human  nature  that  the  former's  earnest- 
ness and  zeal  will  continue.  It  seems  to  our  modern  ideas 
unfair  that  the  inventor  who  saves  the  labor  of  thousands 
by  some  device,  the  chemist  whose  discoveries  result  in  a  new 
treatment  of  some  deadly  disease,  the  surgeon  whose  skill 
operates  to  save  lives,  should  be  paid  on  the  same  basis  as  the 
truck  driver.  Is  the  manager  and  director  of  the  state's  huge 
steel  factory  to  receive  approximately  the  same  labor  time-check 
as  the  night  watchman  at  the  same  factory?  Equality  of  in- 
come spells  the  death  of  initiative  and  energy. 

Again,  the  socialist  inveighs  against  the  corruption  and 
inefficiency  of  government  under  the  present  system :  can  he 
imagine  that  a  government  with  infinitely  more  complex  prob- 
lems will  be  less  corrupt  ?  When  the  functions  of  a  government 
are  increased  in  number  and  widened  in  scope,  the  difficulties 
are  immeasurably  heightened.  To  put  upon  the  government 
the  determination  of  supply  and  demand  for  a  nation  of  one 
hundred  millions,  the  management  of  the  entire  wholesale 
and  retail  distribution  of  the  products,  the  operation  of  all 
means  of  transportation  and  communication,  and  to  expect 
efficiency  under  such  circumstances,  is  visionary. 

It  may  be  fairly  argued,  also,  that  the  socialist  regime  would 
result  in  a  general  deterioration  in  the  character  of  the  individ- 


266   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

uals  in  the  state.  Lacking  the  personal  incentive  to  labor, 
all  men  would  tend  to  do  their  work  indifferently  and  ineffi- 
ciently. It  is  not  enough  to  argue  that  a  man  in  working 
for  the  democratic  state  is  in  reality  working  for  himself :  the 
results  of  his  labor  are  too  diffused  for  him  to  appreciate  its 
value  to  himself.  He  would  be  but  one  of  a  hundred  millions 
producing  for  the  welfare  of  the  whole  hundred  millions.  His 
consciousness  of  the  benefits  that  would  accrue  to  the  whole 
hundred  millions  by  his  zealous  labor  as  an  individual  would 
not,  as  human  nature  is  at  present  constituted,  inspire  him. 

On  the  whole,  the  socialist  state  incurs  the  suspicion  of  not 
being  practical.  Were  men  all  altruistic,  to  be  inspired  by  a 
high  zeal  for  the  common  good  of  all  fellow-men,  the  socialist 
state  would  be  an  ideal  form  of  organization.  With  human 
nature  as  it  seems  still  to  be  hi  this  era,  men  need  all  the  spurs 
of  necessity  and  ambition  to  do  their  best  work  for  themselves 
and  for  mankind. 


III.   "GENERAL  WELFARE"  THEORIES 

The  "general  welfare"  theory  with  respect  to  the  functions 
of  government  is  that  government  should  exercise  such  functions 
General  ^  ^enc^  ^°  mamtain  and  develop  the  general  welfare 
welfare  of  the  people.  In  a  sense,  of  course,  both  the  in- 
dividualistic and  socialistic  theories  are  also  general 
welfare  theories,  for  the  adherents  of  each  believe  that  the 
general  welfare  of  the  people  in  the  state  would  be  promoted 
by  their  respective  systems.  The  term  "general  welfare," 
therefore,  is  used  merely  as  a  convenient  distinguishing  name. 

In  the  individualistic  system  the  functions  of  government 
are  rigidly  fixed  at  the  irreducible  minimum ;  in  the  socialistic 
system  these  functions  are  extended  to  and  maintained  at  the 
maximum;  in  the  general  welfare  system  the  functions  are 
assumed  to  shift  according  to  conditions.  In  a  state  where 
the  economic  education  of  the  people  is  on  a  relatively  low 
plane,  it  may  be  advisable  for  the  general  welfare  of  the  com- 


THE  FUNCTIONS  OF  GOVERNMENT         267 

munity  for  the  government  among  its  various  functions  to 
stimulate  enterprise  by  entering  the  industrial  field  itself; 
in  a  neighboring  state  where  conditions  differ  and  the  people 
are  quick  to  discern  and  advance  their  own  economic  interests, 
the  government  may  restrict  its  functions  and  allow  an  ever 
increasing  amount  of  liberty  to  individuals  to  develop  them- 
selves to  their  best  capacity.  The  flexibility  of  the  general 
welfare  theory  as  contrasted  with  the  rigidity  of  the  individ- 
ualist and  socialist  theories  is  one  of  its  most  attractive  features. 

The  obvious  difficulty  in  this  system  lies  in  the  determination 
of  the  functions  which  are  conducive  to  the  general  welfare  of 
the  community.     Wherever  government  extends  its 
functions,  there  will  always  be  bitter  critics  who  determin-0f 
point  out  the  infringement  upon  the  liberties  of  the  ing  proper 
individual;    on  the  other  hand,  wherever  govern-  JjJJjJJj0118 
ment  deliberately  limits  its  functions,  there  will  be  general 
equally  bitter  critics  who  lament  the  withdrawal  of 
protection  and  encouragement  from  needy  elements 
in  the  community.     To  illustrate  these  statements,  it  is  only 
necessary  to  refer  to  the  outcry  in  England  at  first  when  the 
factory  and  mining  laws  were  enacted,  and  to  the  protest 
in  the  United  States  against  the  lowering  of  the  high  protec- 
tive tariff.     It  may  be  taken  for  granted  that  under  no  cir- 
cumstances will  the  scope  of  the  government's  functions  be 
satisfactory  to  all  persons  and  classes  in  the  community.     The,- 
government's  primary  duty  under  this  system  is  to  ascertain 
by  all  means  possible  the  greatest  good  for  the  greatest  number, 
and  to  take  measures  accordingly. 

However  difficult  its  application,  the  general  welfare  theory 
of  the  scope  of  governmental  functions  is  in  favor  with  states 
at  the  present  time.  The  individualist  theory  is  discredited, 
the  socialist  theory  is  distrusted :  there  only  remains  the  effort 
of  the  government  to  exercise  such  functions  as  may  increase 
the  general  welfare  of  its  people. 


268      AN   INTRODUCTION  TO   THE   STUDY  OF   GOVERNMENT 

IV.  FUNCTIONS  EXERCISED  BY  MODERN  GOVERNMENTS 

In  general,  the  functions  exercised  by  modern  democratic 
governments  may  be  differentiated  into  two  classes,  necessary 
Classes  of  (or  essential)  and  optional  (or  unessential).  Natu- 
functions.  rally,  with  respect  to  the  necessary  functions  a  sub- 
stantial agreement  in  the  practice  of  states  is  to  be  found 
which  may  not  be  found  with  respect  to  the  unnecessary  or 
optional  functions.  The  unnecessary  or  optional  functions, 
however,  indicate  more  strikingly  the  general  character  of  the 
governments  examined. 

V.  THE  NECESSARY  FUNCTIONS  OF  GOVERNMENT 

The  necessary  functions  of  a  government  are  those  functions 
which  it  must  exercise  in  order  to  insure  internal  peace  and 
Necessary  order  and  protection  from  external  attack.  They 
functions.  are  ^he  functions  which  all  governments,  from  the 
primitive  and  rudimentary  to  the  civilized  and  complex,  find 
it  essential  to  exercise  in  order  to  fulfill  the  primary  purpose 
of  the  government's  existence.  These  necessary  functions 
may  be  classified  as  military,  financial,  and  civil. 

(a)  Military 

The  military  function  of  the  government  was  the  original, 
I.  Military  and  is  still  the  chief,  function  of  the  government, 
function.  The  very  existence  of  the  state  depends  upon  the 
readiness  of  the  government  to  wage  war  when  the  nation's 
safety  or  vital  interests  are  at  stake. 

Theoretically,  for  the  enforcement  of  its  military  function  a 
government  may  impress  all  able-bodied  men  in  the  state. 
Such  impressment  may  practically  be  undertaken  in  critical 
war  times.  In  ordinary  times,  however,  a  government  main- 
tains in  constant  readiness  certain  military  forces  for  use  in 
emergency.  In  states  whose  position  renders  them  peculiarly 
liable  to  attack  by  land,  the  need  of  enormous  armies  has 
made  compulsory  military  service  for  all  able-bodied  men 


THE  FUNCTIONS  OF  GOVERNMENT        269 

between  certain  ages  an  essential  governmental  policy.  Thus 
the  governments  of  France  and  Germany  each  maintain  under 
arms  and  in  reserve  nearly  the  entire  male  population  of  their 
respective  states,  and  expend  annually  enormous  sums  (France 
approximately  $185,000,000,  Germany  $200,000,000)  in  main- 
taining the  armies  in  perfect  condition.  In  states  where  danger 
of  attack  by  land  is  remote,  as  England  and  the  United  States, 
armies  are  recruited  by  voluntary  enlistment,  such  "regular" 
troops  to  be  reenforced  in  time  of  war  by  militia  troops  and 
volunteers.  Armies  voluntarily  enlisted  are,  it  is  logically 
argued,  immensely  superior  to  those  gathered  by  compulsory 
service  laws,  for  a  relatively  small  proportion  of  shirkers  enlist 
and  the  army  is  composed  of  men  who  innately  love  the  life. 
In  states  with  long  and  important  seacoasts  and  with  oversea 
possessions  requiring  defense,  governments  are  forced  to  develop 
powerful  navies.  Thus  England  tries  to  maintain  a  navy 
equal  to  the  navies  of  any  two  other  states  and  spends  over 
$200,000,000  annuallylin  increasing  its  ships  and  training  its  men. 

The  modern  developments  in  tactics  and  strategy,  both  for 
armies  and  navies,  require  the  most  careful  organization  and 
most  efficient  handling  of  the  military  forces  at  the  disposal  of 
the  government.  Hence  the  armies  and  navies  are  officered 
from  the  lowest  to  the  highest  command  by  men  especially 
trained  (often  in  special  schools)  for  their  duties.  Hence,  too, 
armies  are  organized  into  different  "arms,"  as  infantry,  cavalry, 
artillery,  engineers,  according  to  the  special  weapons,  limita- 
tions, and  uses  of  the  force  concerned,  and  ships  in  the  navies 
are  built  for  particular  purposes,  as  battleships,  cruisers, 
torpedo  boats,  etc.  Each  detail  of  organization  is  planned 
to  keep  the  army  and  navy  of  the  government  concerned 
abreast  of,  if  not  ahead  of,  the  military  forces  of  other  states. 

A  government  maintains  its  military  forces  for  use  in  two 
kinds  of  emergencies ;  namely,  foreign  war  and  domestic  disorder. 
The  protection  of  the  honor  and  interests  of  the  uses  of  the 
state  from  foreign  aggression  has  always  been  a  m^^y- 
proper  field   for  the   government's  military  forces,  but  the 


270      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

exercise  of  the  military  function  by  the  government  in  internal 
affairs  was  long  resented.  Individuals  felt  that  they  could 
take  care  of  themselves.  The  associations  of  men  for  mutual 
protection  in  former  times,  the  guilds,  the  orders  of  knighthood, 
the  secret  societies,  and  the  like,  all  show  conclusively  how 
readily  men  united  for  their  own  protection  and  how  little 
they  desired  governmental  interference  in  what  they  believed 
to  be  their  individual  rights  and  interests.  But  side  by  side 
with  groups  organized  for  the  protection  of  their  members, 
were  other  groups,  as  of  bandits  and  criminals,  organized  to 
prey  upon  society  as  a  whole.  Against  these  groups  the  gov- 
ernment, representing  the  interests  of  the  entire  people,  used 
its  military  forces.  Likewise,  the  government  found  it  essen- 
tial to  exercise  its  military  function  to  enforce  compliance 
with  the  laws  of  the  community,  as  by  suppression  of  rebellions, 
riots,  and  similar  disturbances. 

The  ultimate  responsibility  and  direction  for  the  use  of  such 
forces  is  vested  in  the  executive  head  of  the  state.  In  most 
modern  governments,  however,  the  power  to  declare 
war  *s  vested  m  tne  legislative  body,  thus  put- 
head  of  ting  into  the  hands  of  the  representatives  of  the 
force"7  people  the  initial  move  in  an  armed  conflict  with  a 
foreign  state;  but  after  war  is  declared,  the  chief 
executive,  aided  by  his  cabinet  officers  and  military  and  naval 
advisers,  is  responsible  for  the  conduct  of  operations.  In  the 
use  of  the  military  forces  for  the  suppression  of  disorder  within 
the  state,  no  special  consent  of  the  legislative  body  is  necessary 
and  the  chief  executive  takes  such  measures  as  in  his  judgment 
and  that  of  his  advisers  seem  necessary. 

(b)  Financial 

The  financial  functions  of  a  government  are  those  functions 
having  to  do  with  the  collection  and  expenditure  of  funds  for 

the  government's  maintenance  and  operation.  A 
ciaifunc?"  government  exercises  the  right  to  exact  from  the 

people  it  controls  the  funds  necessary  for  its  own 


THE  FUNCTIONS  OF  GOVERNMENT        271 

maintenance  and  for  the  performance  of  its  varied  services; 
it  exercises  the  right  also  to  expend  the  funds  it  exacts  in  such 
ways  as  according  to  its  judgment  best  serve  the  fundamental 
purpose  of  its  existence.  Its  methods  and  activity  in  exact- 
ing, handling,  and  expending  the  funds  constitute  the  financial 
functions  of  the  government. 

Modern  governments  obtain  the  funds  necessary  for  their 
maintenance  and  operation  by  the  exaction  of  compulsory 
contributions  variously  known  as  taxes,  rates,  . 

assessments,  duties,  fees,  imposts,  tolls,  licenses,  etc.  method  of 
A  consideration  of  the  first  aspect  of  the  financial 
functions  of  a  government,  then,  involves  a  con- 
sideration of  the  nature,  principles,  kinds,  and  methods  of 
taxation. 

Taxation  is  the  act  or  process  of  assessing  and  collecting 
from  a  people  a  portion  of  their  property  for  the  maintenance 
and  operation  of  their  government.  Inasmuch  as  the  com- 
mand of  a  constant  and  adequate  revenue  is  essential  to  the 
existence  of  organized  government,  the  power  to  tax  is  a  neces- 
sary attribute  of  sovereignty.  Organized  government  must 
be  maintained,  and  the  means  for  such  maintenance  comes  from 
taxation. 

There  never  has  been  a  science  of  taxation  according  to  the 
definitely  stated  principles  of  which  government  could  adjust 
its  taxes ;  taxes  have  been  levied  under  the  influence  of  existing 
circumstances  rather  than  in  accordance  with  acknowledged 
principles  of  equality,  justice,  and  reason.  Human  selfishness 
and  greed  have  at  different  times  imposed  almost  every  con- 
ceivable form  of  tax,  but  never  with  sole  reference  to  the 
economic  principles  involved.  "The  act  of  taxation  consists," 
said  Louis  XIV's  minister,  Colbert,  "in  so  plucking  the  goose 
(i.e.  the  people)  as  to  produce  the  largest  quantity  of  feathers 
with  the  least  possible  amount  of  squealing. " 

Although  there  is  no  accepted  science  of  taxation,  students 
of  finance  have  from  time  to  time  advanced  certain  facts  with 
respect  to  taxation  which  have  been  generally  accepted  as 


272      AN   INTRODUCTION   TO  THE    STUDY   OF   GOVERNMENT 

sound.    Most  important  are  the  four  cardinal  facts  set  forth 
by  Adam  Smith  as  follows : 

"I.  The  subjects  of  every  state  ought  to  contribute  toward  the  sup- 
port of  the  government,  as  nearly  as  possible,  in  proportion  to  their 
respective  abilities ;  that  is,  in  proportion  to  the  revenue  which  they 
respectively  enjoy  under  the  protection  of  the  state.  The  expense 
of  government  to  the  individuals  of  a  great  nation,  is  like  the  expense 
of  management  to  the  joint  tenants  of  a  great  estate,  who  are  all 
obliged  to  contribute  in  proportion  to  their  respective  interests  in  the 
estate.  .  .  . 

"II.  The  tax  which  each  individual  is  bound  to  pay,  ought  to  be 
certain,  and  not  arbitrary.  The  tune  of  payment,  the  manner  of  pay- 
ment, the  quantity  to  be  paid,  ought  all  to  be  clear  to  the  contributor, 
and  to  every  other  person.  When  it  is  otherwise,  every  person  subject 
to  the  tax  is  put  more  or  less  in  the  power  of  the  tax-gatherer,  who  can 
either  aggravate  the  tax  upon  any  obnoxious  contributor,  or  extort, 
by  the  terror  of  such  aggravation,  some  present  or  perquisite  to  him- 
self. .  .  . 

"  III.  Every  tax  ought  to  be  levied  at  the  tune,  or  in  the  manner, 
in  which  it  is  most  likely  to  be  convenient  for  the  contributor  to  pay 
it.  ...  Taxes  upon  such  consumable  goods  as  are  articles  of  luxury 
are  all  finally  paid  by  the  consumer,  and  generally  in  a  manner  that  is 
very  convenient  for  him.  .  .  . 

"  IV.  Every  tax  ought  to  be  so  contrived  as  both  to  take  out  and  to 
keep  out  of  the  pockets  of  the  people  as  little  as  possible,  over  and  above 
what  it  brings  into  the  public  treasury  of  the  state.  A  tax  may  either 
take  out  or  keep  out  of  the  pockets  of  the  people  a  great  deal  more 
than  it  brings  into  the  public  treasury,  in  the  four  following  ways. 
First,  the  levying  of  it  may  require  a  great  number  of  officers  whose 
salaries  may  eat  up  the  greater  part  of  the  produce  of  the  tax,  and 
whose  perquisites  may  impose  another  additional  tax  upon  the  people. 
Secondly,  it  may  obstruct  the  industry  of  the  people,  and  discourage 
them  from  applying  to  certain  branches  of  business  which  might  give 
maintenance  and  employment  to  great  multitudes.  While  it  obliges 
people  to  pay,  it  may  thus  diminish,  or  perhaps  destroy,  some  of  the 
funds  which  might  enable  them  more  easily  to  do  so.  Thirdly,  by  the 
forfeitures  and  other  penalties  which  those  unfortunate  individuals 
incur  who  attempt  unsuccessfully  to  evade  the  tax,  it  may  frequently 
ruin  them,  and  thereby  put  an  end  to  the  benefit  which  the  community 
might  have  received  from  the  employment  of  their  capitals.  .  .  . 
Fourthly,  by  subjecting  the  people  to  the  frequent  visits  and  the  odious 
examination  of  the  tax-gatherers,  it  may  expose  them  to  much  unneces- 


THE   FUNCTIONS   OF   GOVERNMENT  273 

sary  trouble,  vexation,  and  oppression;  and  though  vexation  is  not, 
strictly  speaking,  expense,  it  is  certainly  equivalent  to  the  expense  at 
which  every  man  would  be  willing  to  redeem  himself  from  it.  It  is 
in  some  one  or  other  of  these  four  different  ways  that  taxes  are  fre- 
quently so  much  more  burdensome  to  the  people  than  they  are  benefi- 
cial to  the  sovereign."  ("Wealth  of  Nations,"  Book  V,  Chap.  II.) 

In  addition  to  the  above  principles  set  forth  by  Adam  Smith 
we  may  add  the  following : 

V.  The  subjects  of  taxation  "are  persons,  property,  and  business. 
Whatever  form  taxation  may  assume,  whether  as  duties,  imposts, 
excises  or  licenses,  it  must  relate  to  one  of  these  subjects.    It  is  not 
possible  to  conceive  of  any  other,  though  as  applied  to  them  the  taxa- 
tion may  be  exercised  in  a  great  variety  of  ways."     (Opinion  U.  S. 
Supreme  Court.    Foreign-held  Bond  case,  15  Wallace.) 

VI.  Taxation  must  be  for,  and  only  for,  public  purposes.    Any 
exaction  of  any  kind  by  the  government  for  other  than  public  purposes 
is  tyrannical  and  unlawful.    The  right  of  taxation  is  only  vested  in 
the  government  on  the  ground  that  government  serves  the  ends  of  the 
whole  community ;  consequently  such  right  may  legally  be  exercised 
only  for  use  in  the  service  of  the  whole  community. 

VII.  "All  subjects  over  which  the  sovereign  power  of  the  state  ex- 
tends are  objects  of  taxation,  but  those  over  whom  it  does  not  extend 
are,  on  the  soundest  principles,  exempt  from  taxation."     (Opinion  U.  S. 
Supreme  Court.     Chief  Justice  Marshall.)     Thus  the  legal  power  of 
taxation  extends  as  far  as,  and  no  farther  than,  the  territorial  limits 
of  the  state  sovereignty. 

VIII.  The  taxation  scheme  should  be  capable  of  expansion  or  con- 
traction to  meet  corresponding  expansion  or  contraction  in  the  nec- 
essary expenditures.    A  rigid  system,  not  changeable  except  with  great 
difficulty,  will  involve  a  government  in  severe  financial  stringency  if 
some  emergency  (as  war)  requires  an  immediate  increase  in  revenues. 

For  convenience  of  treatment,  the  kinds  of  taxes  now  im- 
posed by  governments  may  be  classified  as  direct  and  indirect. 
A  direct  tax  is  one  which  is  exacted  directly  from 

.  Kinds  of 

the  person  on  whom  the  burden  of  the  tax  is  ex-  taxes:  di- 

pected  to  fall.     Thus  a  poll  tax  is  a  direct  tax,  feet  and 

.  indirect, 

inasmuch  as  the  burden  of  paying  it  remains  upon 

the  person  from  whom  it  is  directly  exacted.     An  indirect  tax, 
on  the  contrary,  is  a  tax  exacted  from  a  person  other  than 


274      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

the  one  on  whom  the  burden  is  expected  ultimately  to  fall. 
Thus  a  customs  duty  is  an  indirect  tax,  since  the  burden  of  it 
is  shifted  by  the  importer  (from  whom  it  is  exacted)  to  the 
ultimate  consumer  by  means  of  an  increased  charge  which  the 
importer  puts  upon  the  goods. 

The  simplest  form  of  direct  tax  is  that  used  in  the  preceding 
paragraph  as  an  illustration;  namely,  the  poll  tax.  At 
Forms  of  ^e  present  time  only  one  government,  France, 
direct  tax:  exacts  a  poll  tax  from  all  its  citizens.  In  France 
t  e  po  tax.  j.  j^  pOjj  j.ax  (jmpft  personnel)  is  supposed  to  represent 
three  days'  wages  provided  that  a  day's  wages  be  estimated  at  not 
less  than  one  half  franc  and  not  more  than  one  and  one  half 
francs.  In  about  one  half  of  the  separate  commonwealths  in 
the  United  States  a  poll  tax  is  imposed.  In  a  few  cases  in 
the  United  States  the  tax  is  imposed  by  the  commonwealth 
for  commonwealth  purposes,  but  in  general  it  is  a  local  tax, 
the  proceeds  of  which  are  expended  for  such  local  objects  as 
the  maintenance  of  roads  and  highways.  The  payment  of  the 
poll  tax  is  in  France  and  in  some  commonwealths  (Massachu- 
setts, for  example)  a  necessary  preliminary  to  the  exercise  of 
the  rights  of  citizenship. 

The  chief  objection  to  a  poll  tax  is  its  obvious  injustice,  in 
that  the  burden  is  relatively  heavy  upon  a  poor  man  and  light 
upon  a  rich  man. 

A  second  form  of  direct  tax  very  commonly  imposed  by 
governments  is  an  income  tax.  An  income  tax  is  a  tax  levied 
The  income  upon  personal  incomes,  usually  with  an  exemption 
tax-  to  incomes  below  a  stipulated  amount.  The  adop- 

tion of  the  income  tax  so  widely  is  due  to  the  need  of  greater 
revenue  for  the  government  and  the  belief  that  the  income 
tax  provides  just  distribution  of  the  burden  of  taxation  upon 
those  who  are  best  able  to  support  it.  At  the  present  time 
England,  France,  Prussia,  Italy,  Austria,  Switzerland,  Spain, 
Denmark,  Sweden,  and  the  United  States  (since  1914)  impose 
such  taxes.  The  amount  of  exemption  and  the  rate  of  taxation 
differ  widely.  In  Italy  exemption  is  granted  only  to  incomes 


THE  FUNCTIONS  OF  GOVERNMENT         275 

below  $78  a  year,  in  England  to  incomes  below  $780  a  year, 
but  in  the  United  States  such  exemption  extends  to  all  incomes 
below  $4000  a  year  ($3000  for  unmarried  persons).  In  some 
states  the  rate  or  per  cent  of  tax  remains  the  same  for  all  in- 
comes, in  others  (including  the  United  States)  the  rates  are 
advanced  with  the  size  of  the  income;  in  some  states  the 
rate  or  per  cent  of  tax  is  higher  upon  the  income  of  property 
than  upon  the  income  from  personal  services  (pay,  wages, 
salary). 

The  chief  objection  to  this  tax  is  the  difficulty  of  assess- 
ment. The  individual  is  tempted  to  evade  an  honest  state- 
ment of  his  income,  and  yet  will  resent  the  inquisitorial 
methods  necessary  on  the  part  of  government  officials.  In 
states  where  the  exemption  line  is  placed  high  in  the  scale,  as 
in  the  United  States,  the  claim  is  urged  that  an  undue  propor- 
tion of  the-  burden  of  taxation  is  laid  upon  the  relatively 
wealthy,  thus  bringing  the  income  tax  law  into  the  region  of 
class  legislation. 

A  third  kind  of  direct  tax  of  importance  is  an  inheritance 
tax.  An  inheritance  tax  is  a  tax  upon,  the  devolution  of  a 
deceased  person's  property  to  his  heirs  or  legatees.  Theinherit- 
The  theory  upon  which  such  a  tax  is  laid  is  that  the  ance  ta 
heir  or  legatee  has  no  natural  right  to  inherit  the  property  of  a 
deceased  person  but  that  the  state  concedes  and  grants  the 
privilege ;  therefore,  the  state  has  a  constitutional  right  to 
declare  the  terms  upon  which  the  estate  shall  devolve  to  heirs 
or  legatees.  The  tax  is  usually  considered  equitable  and  equal 
in  its  operation.  In  the  application  of  the  tax,  a  lesser  burden 
is  usually  laid  upon  direct  heirs  than  upon  collateral  heirs  or 
legatees.  In  many  states  the  tax  is  graduated  from  a  small 
per  cent  to  a  larger  per  cent  according  to  the  amount  of  prop- 
erty involved.  Thus  in  England,  under  the  schedule  adopted 
in  1910,  inheritance  taxes  ("death  duties,"  as  they  are  called 
in  that  country)  are  laid  in  a  progressive  scale  from  1  per  cent 
on  the  smallest  inheritance  above  £100  to  15  per  cent  on  amounts 
above  £1,000,000. 


276      AN   INTRODUCTION   TO   THE    STUDY   OF   GOVERNMENT 

The  inheritance  tax  is  easy  of  collection  and  yields  annually 
a  large  income.  It  is  at  present  levied  in  nearly  all  the  Euro- 
pean countries  and  in  all  but  ten  of  the  commonwealths  of  the 
United  States.  It  has  been  levied  by  the  central  government 
in  the  United  States,  but  only  in  emergencies. 

The  most  important  of  the  direct  taxes  is  what  may  be  called 
a  property  tax,  i.e.  a  tax  levied  upon  property  of  any  kind  or 
The  prop-  of  whatever  nature.  The  general  theory  under- 
erty  tax.  lying  the  imposition  of  this  tax  is  that  each  owner 
is  guaranteed  and  protected  in  the  possession  of  his  property 
by  the  state  and  therefore  should  willingly  contribute  to  the 
state  in  proportion  to  the  amount  thus  guaranteed  and 
protected. 

Property  is  commonly  divided  into  two  classes,  real  and 
personal.  Real  property  consists  strictly  of  property  in  land 
and  houses ;  personal  property  is  all  other  property,  in  general 
consisting  of  chattels,  things  temporary  or  movable. 

The  tax  upon  real  property,  property  in  land  and  houses,  is 
easy  to  assess  and  cannot  be  evaded.  Such  property  cannot 
be  concealed  and  unpaid  taxes  are  a  first  charge  against  the 
property.  The  ease  of  assessment  and  collection  has  led  a 
group  of  political  economists  to  advocate  a  single  tax  on  real 
estate  to  replace  all  the  varied  taxes  imposed  to-day. 

The  tax  upon  personal  property  is  one  of  the  most  difficult 
to  assess  and  collect  of  all  the  direct  taxes.  Under  modern 
conditions,  where  such  an  enormous  amount  of  personal 
property  is  in  the  form  of  evidences  of  indebtedness,  such  as 
certificates  of  stock,  mortgages,  bonds,  and  the  like,  the  ease 
with  which  it  may  be  concealed  has  led  to  wholesale  evasion  of 
the  tax.  To  be  assured  of  a  complete  declaration  of  personal 
property,  government  officials  must  use  inquisitorial  methods 
which  would  be  deeply  resented  by  individuals,  which  would 
indeed  probably  result  in  a  political  upheaval.  No  assessor 
can  possibly  find  the  true  amount  of  personal  indebtedness 
without  such  methods.  Most  commonwealths  of  the  United 
States  have  provisions  for  the  taxation  of  all  personal  property 


THE   FUNCTIONS  OF  GOVERNMENT  277 

over  a  specified  amount  (as  $50),  but  the  enforcement  of  the 
tax  is  commonly  acknowledged  to  be  impossible.  The  per- 
sonal property  tax  is  the  most  unsatisfactory  of  the  direct 
taxes. 

Of  the  indirect  taxes,  the  most  important  are  The  indirect 
the  customs  duties  (tariffs)  and  the  excise  tax.          *•*• 

Tariffs,  customs,  or  customs  duties  are  taxes  imposed  on 
commodities   imported   into,    or   exported   from,    a   country. 
Export    customs    are    seldom    imposed    and    may  TariflfS)  or 
therefore  be  disregarded.     Import  customs  or  tariffs  customs 
form  in  most  countries  the  most  prolific  source  of    u  es* 
revenue  for  the  central  government. 

Tariffs  may  be  distinguished  as  revenue  tariffs,  protective 
tariffs,   and  retaliatory  tariffs.     A  revenue  tariff  is  a  tariff 
imposed  solely  for  the  purpose  of  revenue.    A  pro-  Kinds  of 
tective  tariff  is  a  tariff  imposed  for  the  artificial  fos-  tariffs- 
tering  of  home  industries  by  so  taxing  imports  that  they  can- 
not compete  with  home  products.     A  retaliatory  tariff  is  a 
tariff  levied  by  one  country  under  such  rules  as  to  affect  im- 
ports from  a  country  suspected  of  discriminating  by  a  high 
tariff  against  the  particular  products  of  the  first  country. 

Tariffs,  or  customs  duties,  are  easy  to  collect  but  difficult 
to  adjust.    The  first  difficulty  that  presents  itself  is  the  ques- 
tion whether  to  tax  commodities  according  to  a  spe- 
cific duty  (as  by  weight,  measurement,  or  the  like),  pifficuities 
or  ad  valorem,   according  to  market  value.     The  tems:  i. 


specific  duty  exacts  so  much  tax  for  each  pound, 
yard,  or  square  foot  of  commodities  of  a  given  kind  duties. 
without  regard  to  their  relative  fineness  or  value. 
The  ad  valorem  duty  exacts  a  percentage  tax  based  on  the  market 
value  of  the  goods.  Specific  duties  are  comparatively  simple 
to  assess  and  collect,  but  seem  unjust  to  importers  of  lower 
grades  of  goods.  Ad  valorem  duties  are  difficult  to  assess, 
owing  to  the  fluctuations  in  market  values,  and  require  the 
employment  of  a  large  force  of  trained  experts  in  various 
lines. 


278      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

The  second  great  difficulty  in  fixing  the  tariff  is  to  deter- 
mine what  commodities  to  tax  and  how  much  tax  to  exact. 
So  far  as  any  general  principle  is  observable  in  the 
tariff  history  of  modern  states  it  is  that  the  imports 
taxable  of  luxuries  shall  be  taxed  and  taxed  heavily  and  the 
ties™0  l"  imports  of  necessities  shall  be  taxed  lightly  or  not  at 
all.  Thus,  wines  and  precious  stones  are  commonly 
taxed  at  an  extraordinarily  high  rate,  and  meats,  grains,  and 
clothing  fabrics  are  commonly  admitted  free  or  with  a  very 
low  tariff.  All  the  great  nations  of  the  world,  with  the  single 
exception  of  England,  exact  a  tax  upon  a  large  number  of  dif- 
ferent articles  imported  into  the  country.  England  has,  by  a 
series  of  parliamentary  measures  since  1840,  established  prac- 
tical free  trade,  retaining  at  present  only  about  twenty-five 
articles  as  dutiable  (including  tobacco,  tea,  sugar,  spirits, 
wine,  motor  spirits,  coffee,  chicory,  cocoa,  and  dried  fruit). 

The  excise  duties,  or,  as  they  are  called  in  the  United  States, 
internal  revenue  taxes,  comprise  all  those  taxes  levied  upon 
_  .  the  manufacture,  sale,  or  consumption  of  commodi- 

Excise  or 

internal  ties  within  the  limits  of  a  country.  All  prominent 
revenue  governments  of  the  modern  world  derive  a  large  pro- 
portion of  their  income  from  the  exaction  of  such 
taxes.  Such  taxes  are  easily  assessed  and  collected  and  impose 
but  an  infinitesimal  tax  upon  the  ultimate  consumer.  Although 
they  are  unpopular,  they  are  probably  less  objectionable  in  their 
political  and  economic  effects  than  the  customs  duties  (tariffs). 

The  chief  income  from  excise  duties  has  in  the  past  been 
from  tobacco  and  spirituous  and  fermented  liquors.  In  1909 
Chief  com-  tne  United  States  imposed  an  internal  revenue  tax 
modities  on  the  net  income,  over  and  above  $5000,  of  all  busi- 
ness corporations  whose  primary  object  is  money 
making.  At  present  the  income  from  internal  revenue  is  de- 
rived in  the  United  States  from  the  following  taxes :  spirituous 
and  fermented  liquors,  tobacco  manufactures,  oleomargarine  and 
"process"  butter,  filled  cheese,  playing  cards,  and  corporations. 

An  excise  tax  has  always  been  unpopular.    To  yield  an  appre- 


THE   FUNCTIONS  OF  GOVERNMENT  279 

ciable  amount  of  revenue,  it  must  be  imposed  on  an  article  of 
general  consumption,  and  when  thus  laid  it  results  in  a  rise 
in  price,  thus  throwing  the  burden  of  the  tax  upon  the  great 
masses  of  relatively  poor  people.  The  assessment  and  collec- 
tion of  such  a  tax,  too,  requires  restrictive  regulations  by  the 
government  over  manufacturers  or  dealers,  and  such  regula- 
tions are  always  a  cause  of  annoyance  and  trouble.  However, 
if  the  excise  is  imposed  upon  only  a  few  articles  of  luxury,  as 
tobacco  and  spirituous  and  fermented  liquors,  these  objections 
are  not  of  great  force. 

Of  the  method  of  assessment  and  collection  of  taxes  little 
need  be  said.     In  ancient  times,  and  under  retrogressive  gov- 
ernments (as  Turkey)  in  modern  times,  the  practice  Taxation. 
of  "farming  out"  taxes  was  common.     This  con-  method  of 
sisted  in  a  leasing  out  of  taxes  for  a  fixed  sum  to  a  aSTcoUe6^* 
person  authorized  to  collect  and  retain  them.     Many  tion  of 
abuses  flourished  under  this  system :   agents  of  the  taxes- 
tax  farmers  scrupled  at  nothing  to  wring  excessive   amounts 
from  the  people ;  immense  and  illegitimate  fortunes  were  thus 
gained ;   and  unhappy  communities  rose  in  insurrection  against 
governments  permitting  such  evils.     At  present  the  practice 
of  assessment  and  collection  of  the  taxes  by  regularly  appointed 
officials  of  the  government  is  universal  in  civilized  states.    The 
rate  of  taxation  is  public,  and  the  opportunities  for  extortion  are 
reduced  to  a  minimum. 

In  adjusting  the  state  revenue  to  the  expenditure,  most 
modern  governments  have  established  the  "budget"  system. 
The  budget  consists  of  a  tabulated  statement  of  es- 
timated revenue  and  estimated  expenditure.  It  is 
commonly  drawn  up  under  the  direction  of  one  of  the  adjusting 
members  of  the  cabinet  and  presented  to  the  legis-  expenditure 
lative  body  for  approval.  Whenever  the  estimated 
necessary  expenditures  exceed  appreciably  the  estimated  reve- 
nues, suggestions  for  increased  taxation  to  cover  the  estimated 
deficit  often  accompany  the  budget  and  are  likewise  presented 
to  the  legislative  body  for  action. 


280      AN   INTRODUCTION  TO  THE   STUDY  OF   GOVERNMENT 

For  example,  in  England  the  chancellor  of  the  exchequer, 
who  is  a  member  of  the  cabinet,  presents  to  the  House  of 
Commons,  usually  in  April  of  each  year,  (1)  a 
statement  of  the  actual  results  of  the  revenue  and 
land  and  expenditure  during  the  last  fiscal  year  ending  March 
states Cntal  ^>  anc^  ®  a  statement  estimating  the  revenue  and 
expenditure  for  the  coming  twelve  months.  Parlia- 
ment acts  upon  these  statements,  incorporating  in  a  bill  the 
provisions  for  any  new  taxes  deemed  necessary  and  advisable. 
When  the  reports  have  been  approved,  the  budget  is  passed 
as  the  Finance  Act.  A  substantially  similar  method  is  fol- 
lowed in  the  great  continental  states,  France,  Germany,  Austria, 
Italy,  and  Spain. 

In  the  United  States  the  secretary  of  the  treasury  makes 

estimates  of  the  necessary  expenditures  for  the  government, 

and  these  estimates  are  presented  to  Congress,  but 

The  system  ' 

in  the  the  actual  expenditures  are  made  by  means  of  bills 

United  introduced  by  several  different  committees.  Thus  a 
balance  sheet  is  not  considered  by  Congress  as  a 
whole,  and  there  is  no  real  consideration  of  a  budget.  The  result 
has  been  that  a  regrettable  confusion  often  exists  with  respect 
to  the  amount  available  for  expenditure.  Revenues  are  exacted 
without  accurate  estimation  of  the  needs  of  the  government, 
and  then  money  is  spent  to  balance  the  revenues.  In  cases 
where  the  necessities  of  government  actually  exceed  the  rev- 
enues, the  government  resorts  to  borrowing.  Large  bond  issues 
are  made  to  cover  deficits  which  should  have  been  foreseen 
and  covered  by  a  slight  increase  in  some  elastic  tax,  as  the  tax 
on  liquors,  tobacco,  or  the  like. 

In  contradistinction  to  the  unscientific  methods  of  the  fed- 
eral government  in  the  United  States  in  managing  its  revenues 
and  expenditures,  the  separate  commonwealths  and  the  vari- 
ous municipalities  have  almost  universally  adopted  the  budget 
system.  In  these  smaller  units  the  items  of  revenue  and  expen- 
diture can  be  and  are  accurately  estimated  beforehand  and  the 
necessary  legislation  passed. 


THE   FUNCTIONS   OF   GOVERNMENT  281 

The  expenditure  of  the  state  funds  is,  in  all  great  modern 
democratic  states,  in  the  hands  of  the  representatives  of  the 
people  and  constitutes  one  of  their  chief  functions.   E    en(jiture 
In  states  having  the  budget  system  the  passing  of  of  state 
the  Finance  Act  disposes  of  the  financial  expendi-  £0nudesdc£y~ 
tures  for  the  most  part ;  in  the  United  States  each  legislative 
separate  appropriation  bill  submitted  by  the  com-  body* 
mittees  requires  long  consideration  and  debate  in  both  chambers 
before  its  passage.     Thus,  for  example,  the  bill  submitted  by  the 
committee  on  military  affairs   commonly  undergoes   months 
of  discussion  before  it  is  passed. 

(c)  Civil 

The  third  necessary  function  of  government  is  what  may 
be  termed  4he  civil  function.  The  state  in  the  exercise  of  its 
civil  function  regulates  the  relations,  social,  eco-  m.  civil 
nomic,  and  political,  between  its  individual  citizens,  function. 
The  exercise  of  this  function  requires  that  the  state  provide 
for  the  enforcement  of  contractual  obligations,  regulate  the 
conditions  under  which  property  may  be  held,  sold,  or  trans- 
mitted, maintain  the  rights  of  the  individual  against  infringe- 
ment or  encroachment,  punish  for  crime,  and  decide  matters 
of  dispute.  This  function  is  a  necessary  function,  because  by 
its  exercise  the  state  maintains  peace  and  order  within  its 
boundaries. 

The  judiciary  system  provided  for  in  the  constitution  of  all 
states  is  the  means  by  which  this  function  is  exercised.  In 
federal  states,  such  as  the  United  States  and  Germany,  a  large 
part  of  the  exercise  of  this  function  falls  within  the  province 
of  the  component  units,  although  the  state  maintains  an  inde- 
pendent system  of  courts  for  cases  of  specified  kinds.  In  all 
states  the  judiciary  system  is  so  adjusted  that  the  burden  of 
handling  the  large  number  of  trivial  cases  falls  upon  the  local 
governments  or  organizations. 


Chap.  XI.     Statistics  and  Illustrative  Citations 

EXTRACT  FROM  THE  FINANCE  ACT  OF  1894,  PROVIDING  FOR 
THE  INHERITANCE  TAX  IN  ENGLAND 

AN  ACT  to  grant  certain  Duties  of  Customs  and  Inland  Revenue, 
to  alter  other  Duties,  and  to  amend  the  Law  relating  to  Cus- 
toms and  Inland  Revenue,  and  to  make  other  provision  for 
the  financial  arrangements  of  the  year.  (31st  July  1894.) 

MOST  GRACIOUS  SOVEREIGN, 

WE,  Your  Majesty's  most  dutiful  and  loyal  subjects  the 
Commons  of  the  United  Kingdom  of  Great  Britain  and  Ire- 
land in  Parliament  assembled,  towards  raising  the  necessary 
supplies  to  defray  Your  Majesty's  public  expenses,  and  making 
an  addition  to  the  public  revenue,  have  freely  and  voluntarily 
resolved  to  give  and  grant  unto  Your  Majesty  the  several 
duties  herein-after  mentioned ;  and  do  therefore  most  humbly 
beseech  Your  Majesty  that  it  may  be  enacted,  and  be  it  enacted 
by  the  Queen's  most  Excellent  Majesty,  by  and  with  the  advice 
and  consent  of  the  Lords  Spiritual  and  Temporal,  and  Com- 
mons, in  this  present  Parliament  assembled,  and  by  the  author- 
ity of  the  same,  as  follows : 


PART  I 

ESTATE    DUTY 

Grant  of  Estate  Duty 

Grant  of  1.  In  the  case  of  every  person  dying  after  the 

estate  commencement  of  this  Part  of  this  Act,  there  shall, 

save  as  herein-after  expressly  provided,  be  levied 

and  paid,  upon  the  principal  value  ascertained  as 

herein-after  provided  of  all  property,  real  or  personal, 

settled  or  not  settled,  which   passes  on  the   death 

of  such  person  a  duty,  called  "  Estate  duty,"  at  the 

graduated  rates   herein-after   mentioned,   and  the 

existing  duties  mentioned  in  the  First  Schedule  to 

282 


THE   FUNCTIONS   OF   GOVERNMENT 


283 


this  Act  shall  not  be  levied  in  respect  of  property 
chargeable  with  such  Estate  duty. 

2.  (1)  Property  passing  on  the  death  of  the  de-  What 
ceased  shall  be  deemed  to  include  the  property  follow-  property  is 
ing,  that  is  to  say :  de™ed  to 

(a)  Property  of  which  the  deceased  was  at  the 
time  of  his  death  competent  to  dispose ; 

(6)  Property  in  which  the  deceased  or  any  other 
person  had  an  interest  ceasing  on  the  death  of  the 
deceased,  to  the  extent  to  which  a  benefit  accrues  or 
arises  by  the  cesser  of  such  interests ;  but  exclusive 
of  property  the  interest  in  which  of  the  deceased  or 
other  person  was  only  an  interest  as  holder  of  an 
office,  or  recipient  of  the  benefits  of  a  charity,  or  as  a 
corporation  sole ; 

(c)  Property  which  would  be  required  on  the  death 
of  the  deceased  to  be  included  in  an  account  under 

section   thirty-eight   of   the    Customs   and  Inland  44  &  45  Viet. 
Revenue  Act,  1881,  as  amended  by  section  eleven  c-12 
of  the  Customs  and  Inland  Revenue  Act,  1889,  if  52  & 63  Viet, 
those  sections  were  herein  enacted  and  extended  to 
real  property  as  well  as  personal  property,  and  the 
words  "voluntary"  and  "voluntarily"  and  a  refer- 
ence to  a  "volunteer"  were  omitted  therefrom ;  and 

(d)  Any  annuity  or  other  interest  purchased  or 
provided  by  the  deceased,  either  by  himself  alone 
or  in  concert  or  by  the  arrangement  with  any  other 
person,  to  the  extent  of  the  beneficial  interest  accru- 
ing or  arising  by  survivorship  or  otherwise  on  the 
death  of  the  deceased. 

(2)  Property  passing  on  the  death  of  the  deceased 
when  situate  out  of  the  United  Kingdom  shall  be 
included  only,  if,  under  the  law  in  force  before  the 
passing  of  this  Act,  legacy  or  succession  duty  is  pay- 
able in  respect  thereof,  or  would  be  so  payable  but 
for  the  relationship  of  the  person  to  whom  it 
passes.  .  .  . 


c.  7. 


RATES   OF   ESTATE   DUTY 


The  rates  of  Estate  duty  have  been  twice  revised  since  1894, 
once  in  the  Finance  Act  of  1907,  and  again  in  the  Finance  Act 
of  1910.  The  rates  in  force  at  present,  as  stated  in  the  Second 


284      AN   INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 


Schedule  appended  to  Finance  (1909-10)  Act  1910,  are   as 
follows : 


WHERE  THE  PRINCIPAL  VALUE  OF  THE  ESTATE 

ESTATE  DUTY  SHALL 
BE  PAYABLE  AT  THE 
RATE  PER  CENT  OF 

£                                                               £ 
Exceeds            100  and  does  not  exceed            500 
Exceeds            500  and  does  not  exceed         1,000 
Exceeds         1,000  and  does  not  exceed         5,000 
Exceeds         5,000  and  does-  not  exceed       10,000 
Exceeds       10,000  and  does  not  exceed       20,000 
Exceeds       20,000  and  does  not  exceed       40,000 
Exceeds       40,000  and  does  not  exceed       70,000 
Exceeds       70,000  and  does  not  exceed     100,000 
Exceeds     100,000  and  does  not  exceed     150,000 
Exceeds     150,000  and  does  not  exceed     200,000 
Exceeds     200,000  and  does  not  exceed     400,000 
Exceeds     400,000  and  does  not  exceed     600,000 
Exceeds     600,000  and  does  not  exceed     800,000 
Exceeds     800,000  and  does  not  exceed  1,000,000 
Exceeds  1,000,000 

1 

2 
3 
4 
5 
6 
7 
8 
9 
10 
11 
12 
13 
14 
15 

CHAPTER  XII 
UNNECESSARY  OR  OPTIONAL  FUNCTIONS  OF  GOVERNMENT 

THE  functions  which  have  been  discussed  in  the  preceding 
pages  are  the  functions  which  must  necessarily  be  exercised 
to  insure  the  existence  of  government ;  in  addition  to 
these,  all  governments  of  the  modern  era  exercise  sary  or  op- 
many  other  functions  in  their  attempt  to  promote  the  *{onal  func~ 
general    welfare    and    prosperity   of   their   people. 
These  latter  functions  we  may  call  the  unnecessary  or  optional 
functions  of  government. 

No  absolute  uniformity  with  regard  to  the  optional  func- 
tions exercised  by  governments  exists  in  practice  to-day.  Some 
governments  own  and  manage  their  railroads,  others  Lack  of  uni- 
do  not ;  nearly  all  central  governments  manage  the  f<^ty^s 
post  office,  but  in  the  German  Empire  we  find  for  the 
certain  of  the  federal  units  having  a  postal  service  extircn^f  of 
distinct  from  that  of  the  Empire ;  some  governments  functions, 
control  and  administer  the  telegraphs  and  telephones,  others 
leave  these  to  private  ownership  and  management;  within 
a  single  great  state  we  may  see  differences  in  practice,  as 
in  the  United  States,  where  the  Panama  Canal  is  constructed 
by  the  central  government,  the  so-called  Barge  Canal  hi  New 
York  by  the  commonwealth  government,  and  the  Cape  Cod 
Canal  by  private  capital.  The  only  principles  determining 
whether  or  not  a  government  shall  exercise  certain  of  these 
optional  functions  are :  (1)  that  a  government  should  do 
for  the  public  welfare  those  things  which  private  capital 
would  not  naturally  undertake,  and  (2)  that  a  government 
should  do  those  things  which  by  its  very  nature  it  is  better 
equipped  to  administer  for  the  public  welfare  than  is  any 
private  individual  or  group  of  individuals.  How  far  these 

285 


286   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

principles  are  applicable  in  concrete  instances  is  to  be  deter- 
mined by  the  statesmanship  of  those  at  the  head  of  the  separate 
governments. 

In  considering  the  present  practice  with  regard  to  optional 
functions,  we  may,  for  convenience,  distinguish  five  general 
Classes  of  classes  :  (1)  Public  Works;  (2)  Public  Education; 
optional  (3)  Public  Charity;  (4)  Industrial  Regulations; 

functions.  Regulations. 


I.  PUBLIC  WORKS 

In  the  class  of  public  works  are  to  be  included  all  those  indus- 
tries which  have  been  removed  by  a  government  from  private 
Public  control  and  management  to  its  own  control  and 

works.  management  in  accordance  with  one  or  other  of  the 

principles  stated  above.  As  has  been  emphasized,  governments 
differ  in  the  extent  to  which  they  have  considered  these  prin- 
ciples applicable;  thus,  for  example,  governments  uniformly 
control  the  coinage  and  currency  in  their  respective  countries 
and  establish  and  maintain  lighthouses,  but  on  the  other  hand 
governments  differ  radically  in  the  extent  to  which  they  go  in 
the  control  of  railroads,  water  supplies,  forests,  etc. 

Modern  governments  uniformly  control  the  coinage  and 
issue  of  currency  of  various  kinds.  Nothing  is  more  impor- 
i.  Fi-  tant  to  insure  the  stability  of  business  relations  than 

nances.  a  nxed  standard  of  exchange  ;  and  no  individual  or 
group  of  individuals  is  in  a  position  to  insure  such  a  fixed  stand- 
ard. In  minting  its  metal  currency  and  in  printing  its  paper 
currency  to  represent  the  precious  metal  stored  in  its  vaults, 
and  in  punishing  severely  any  attempt  to  counterfeit  such 
currency  or  to  reduce  the  value  of  such  currency,  a  government 
is  but  guaranteeing  to  its  citizens  a  fixed  standard  of  exchange 
and  thus  facilitating  the  prosperity  of  the  country. 

In  addition  to  its  function  in  coinage,  certain  governments, 
notably  England  and  the  United  States,  have  established  and 
now  maintain  savings  banks  (commonly  called  postal  savings 
banks,  because  operated  with  the  agency  of  the  post  office 


OPTIONAL   FUNCTIONS   OF   GOVERNMENT  287 

department).  These  savings  banks  have  offered  to  the  people 
a  place  of  deposit  for  their  money  which  is  as  secure  as  the  nation 
itself.  Although  the  rates  of  interest  are  lower  than  in  the 
privately  managed  savings  banks,  the  absolute  security  of 
the  principal  against  mismanagement  or  dishonesty  has  made 
such  banks  very  popular. 

Almost  uniformly,  modern  governments  control  and  manage 
the   public   postal   service   of  their   respective   states.     Such 
control  and  management  is  so  familiar  to  us  to-day  2  Com_ 
that  we  are  tempted  to  forget  that  not  many  genera-  munica- 
tions  ago  the  transmission  of  mail  matter  was  in  the   tions* 
hands  of  private  business  concerns.     Governments  have  taken 
the  postal  service  over  on  the  ground  that  they,  by  their  nature, 
are  better  fitted  to  insure  the  necessary  safety  and  speed  of 
delivery  than  are  any  private  concerns. 

The  same  considerations  that  led  governments  to  take  over 
the  postal  service  have  led  them  in  several  notable  instances 
to  take  over  also  the  other  important  means  of  communica- 
tion ;  namely,  the  telegraph  and  telephone  service.  A  distinct 
advantage  accrues  to  governments  owning  the  telegraph  and 
telephone  service  of  the  country,  in  that  in  case  of  war  an  im- 
mediate and  absolutely  effective  censorship  can  be  established 
over  all  the  means  of  communication.  At  the  present  time 
Germany,  France,  Belgium,  and  England  are  among  the  im- 
portant governments  which  own  and  manage  this  service. 
State  ownership  has  been  proposed  in  the  United  States,  but 
the  enormous  expense  involved  in  taking  over  the  companies 
has  been  one  chief  argument  against  so  doing. 

Arguments  similar  to  those  used  for  government  ownership 
and  management  of  the  postal,  telegraph,  and  telephone  ser- 
vices have  led  Germany  into  the  government  owner- 
ship and  management  of  railroads.  The  govern- 
ment  of  Italy  also  owns  and  operates  its  railroads, 
but  the  considerations  in  that  state  leading  to  such  governmental 
ownership  were  different  from  those  in  Germany.  Owing  to 
the  peculiar  shape  of,  and  land  conditions  in,  the  Italian  penm- 


288      AN   INTRODUCTION   TO  THE   STUDY  OF  GOVERNMENT 

sula,  privately  owned  railroads  could  not  be  profitable;  and 
yet  the  industrial  development  of  the  country  could  only  be 
increased  by  a  system  of  railroads :  for  the  public  good,  there- 
fore, the  Italian  government  maintains  the  financial  burden 
of  owning  and  operating  the  railroads  in  the  state.  The  United 
States  has  been  confronted  by  a  somewhat  similar  condition 
in  Alaska,  and  the  government  has  at  last  been  authorized  to 
build,  equip,  and  manage  a  railroad  to  tap  certain  great  coal 
deposits  in  that  territory.  In  this  case,  it  was  not  believed 
beneficial  to  the  public  interest  to  allow  private  capitalists  to 
control  the  freight  facilities  for  these  coal  deposits. 

In  local  governments,  the  municipal  ownership  of  street 
transit  lines  has  been  widely  favored  and  adopted.  Thus 
many  cities  in  England,  Germany,  Austria,  Switzerland,  Italy, 
and  the  United  States  have  bought,  or  have  built  and  are  now 
operating,  the  municipal  transit  lines,  on  the  principle  that 
lower  fares  and  better  service  result  from  municipal  than  from 
private  ownership.  In  this  country  the  question  is  still  a  live 
issue.  To  be  weighed  against  the  manifest  advantages  of  honest 
and  intelligent  municipal  ownership  and  operation  is  the  preva- 
lent distrust  of  political  influence  and  graft. 

A  field  in  which  the  exercise  of  optional  governmental  func- 
tions is  not  questioned  is  the  provision  of  public  safeguards, 
such  as  lighthouses,  buoys,  beacons,  and  the  like, 
safe^ards  ^  persons  recognize  that  the  safety  of  traffic  by 
water  depends  upon  the  maintenance  of  such  safe- 
guards, and  yet  there  would  be  no  inducement  to  private  con- 
cerns to  establish  and  maintain  them.  Hence,  the  gov- 
ernment is  forwarding  the  general  interest  of  the  state  in 
undertaking  this  work. 

The  building  of  dikes  and  levees  is  but  a  different  applica- 
tion of  this  optional  function  for  the  general  welfare. 

From  very  early  times  the  maintenance  of  thoroughfares  has 
been  an  optional  governmental  function.  The  marvelous  mili- 
tary roads  of  the  Roman  Empire  still  exist  to  bear  witness  of 
this  fact.  Governments  (state  or  local)  are  still  engaged  in 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  289 

building  and  maintaining  roads,  canals,  bridges,  and  wharves, 
in  dredging  and  deepening  river  channels  and  harbors,  and  in 
removing  various  obstructions  to  traffic,  as  derelicts  5.  xhor- 
in  the  sea  paths.     In  these  cases,  again,  we  find  a  oughfares. 
natural  optional  function  of  government,  a  function  which  all 
recognize  as  exercised  for  the  public  welfare,  and  yet  a  function 
which,  if  not  exercised  by  the  government,  would  probably  not 
be  exercised  at  all. 

The  extension  of  governmental  functions  to  include  the 
conservation  of  the  natural  resources  of  the  country,  and  to 
insure  that  the  benefits  to  be  derived  from  these  s.  Natural 
natural  resources  shall  be  equitably  distributed  for  resources, 
the  common  good,  has  become  a  vital  question  in  this  country 
in  recent  years.  The  government  has  checked  the  ravages 
of  private  individuals  and  business  concerns  in  time  to  preserve 
some  natural  resources  of  inestimable  value.  For  example, 
the  United  States  government  owns  and  manages  "in  the  in- 
terest of  the  whole  people"  (as  stated  in  an  official  report) 
forests  to  the  extent  of  150,000,000  acres.  These  forests  are 
protected  against  fire  and  are  scientifically  cut  and  replanted. 
In  the  future  this  enormous  supply  may  play  an  important  part 
in  preventing  a  lumber  famine.  Again,  the  government  has 
taken  an  active  hand  in  insuring  an  equitable  distribution  of 
the  water  supply  in  certain  semiarid  regions  of  the  west. 
For  the  purpose  of  irrigation  it  has  built  the  enormous  Roosevelt 
Dam  in  Arizona,  another  huge  dam  (the  highest  in  the  world)  in 
Wyoming,  the  Lagune  Dam  holding  the  waters  of  the  Colorado 
River,  and  an  earthen  dam  in  South  Dakota.  Under  the  Rec- 
lamation Act  of  1902,  Congress  provided  for  the  above  en- 
gineering works,  and  for  more  to  follow. 

Governmental  ownership  and  operation  of  supply  plants, 
as  of  water,  gas,  or  electricity,  is  for  the  most  part  confined  to 
local  governments.    As  in  the  case  of  street  transit  7.  supply 
lines,  municipal  ownership  of  the  water,  gas,  and  plants, 
electricity  supplies  has  been  extensively  adopted  in  cities  of 
modern  states.    The  arguments  in  favor  of  such  ownership 


290      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

and  operation,  provided  the  operation  is  honest  and  intelli- 
gent, are  irrefutable,  but  the  suspicion  that  municipal  control 
would  infuse  the  worst  elements  of  party  politics  and  graft 
into  the  management  of  these  public  necessities  has  led  many 
serious  thinkers  to  take  their  stand  in  opposition. 

II.   PUBLIC  EDUCATION 

The  second  of  the  five  general  classes  of  optional  functions  is 
composed  of  those  functions  having  to  do  with  public  education. 
Public  edu-  It  may  safely  be  said  that  in  no  line  has  govern- 
cation.  ment  done  so  much  as  in  this  during  recent  genera- 

tions. With  the  introduction  and  steady  increase  in  demo- 
cratic institutions,  governments  have  realized  that  the  edu- 
cation of  the  people  was  their  best  insurance  for  continued 
existence. 

The  most  obvious  manifestation  of  the  exercise  of  this 
optional  function  is  the  public  school  system  established  and 

1  Public       maintained  in  all  progressive  governments  to-day, 
school  sys-     Where  children  of  the  poorer  classes  were  not  ex- 
tem*  pected  to  receive  any  education  in  many  of  the  fore- 
most states  a  century  ago,  free  schools  are  now  provided  and 
stringent  truancy  laws  enforced.     In  the  money  appropriated 
for  education,  and  in  the  number  and  quality  of  the  schools 
provided,  the  United  States  excels  any  other  great  state. 

For  educational  purposes  also  modern  governments  estab- 
lish and  maintain  museums,  art  galleries,  libraries,  botanical 

2  Museums    anc^  zoological  gardens,  and  parks.    Both  national 
art  gal-         and   local   governments    exercise   these   functions, 
leries,  etc.     The  British  Museum  in  London,   the  Louvre  in 
Paris,  and  the  Smithsonian  Institution  in  Washington  are  ex- 
amples of  what  free  educational  opportunities  the  central  gov- 
ernment offers  to  its  people. 

Of  a  different  but  equally  valuable  kind  for  the  education 
of  the  people  are  the  scientific  bureaus,  experiment  stations, 
and  the  like  established  and  maintained  by  the  government. 


OPTIONAL   FUNCTIONS   OF   GOVERNMENT  291 

The  weather  bureau,  the  hydrographic  office,  and  the  astro- 
nomical observatories  are  examples  of  such  bureaus  3   scientific 
established  not  only  to  safeguard  the  people,  but  establish- 
to  gather  and  disseminate  information  of  general  ments- 
interest  and  value. 

A  few  striking  statistics  of  what  a  single  branch  of  govern- 
ment does  in  a  scientific  way  will  illustrate  the  value  of  the 
government's  work  to  the  country  at  large.  The  department 
of  agriculture  in  the  United  States  stands  ready  to  help  the 
farmer  in  whatever  difficulty  may  beset  him.  It  will  show 
him  for  what  crops  his  soil  is  suited  and  how  to  grow  those 
crops ;  what  animals  to  breed  and  how  to  take  care  of  them. 
It  has  introduced  into  this  country  sorghum,  durum  wheat, 
alfalfa,  the  navel  orange,  Japanese  rice  and  bamboo,  the  Corsi- 
can  citron,  the  Indian  mango,  Spanish  almonds,  French  prunes, 
Chinese  mustard,  and  Egyptian  cotton.  It  establishes  sub- 
sidiary bureaus  to  report  the  condition  of  imported  seeds, 
grains,  and  the  like.  In  its  laboratories  it  studies  the  best 
methods  of  fighting  the  numerous  pests  and  diseases  which 
baffle  the  farmer,  as  the  boll  weevil,  the  brown-tailed  moth, 
the  tent  caterpillar,  the  little-peach  disease  and  the  peach- 
blight,  the  apple  bitter-rot,  etc.  Such  work  as  this  appeals  in 
a  practical  way  to  every  citizen  of  the  state. 

III.   PUBLIC  CHARITY 

The  third  of  the  general  classes  of  optional  functions  is  com- 
posed of  those  functions  having  to  do  with  public  charity.     In 
the  exercise  of  this  function,   the  government  is  public 
doing  something  which  the  heart  of  each  man  ap-  charity, 
proves,  yet  which,  were  it  not  done  by  the  government,  would 
be  less  efficiently  done  by  individuals.     It  is  true  that  in  recent 
years  men  of  large  fortunes  have  devoted  huge  sums  to  public 
charitable  and   educational   uses,   as  by  the    endowment  of 
research  laboratories,  hospitals,  libraries,  and  colleges.     The 
governments,  however,  in  no  degree  relax  their  efforts  to  take 


292   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

care  of  the  poor  and  helpless.  The  soldiers'  homes  established 
and  maintained  by  the  central  government,  the  numerous 
insane  asylums,  almshouses,  and  hospitals,  either  of  the  central 
or  local  governments,  and  the  various  corrective  institutions, 
all  bear  witness  to  the  exercise  of  public  charity  by  the  gov- 
ernment. 

In  comparatively  recent  years  a  notable  endeavor  to  help 
Public  Poor  Pe°Ple  to  help  themselves,  or  at  least  to  as- 

charity  sure  public  charity  to  the  really  deserving,  has 
insurance.  resuited  in  the  introduction  of  various  forms  of 
state  insurance. 

Germany  has  in  her  laws  the  most  complete  system  of  work- 
ingman's  insurance  in  the  world  to-day.  At  present,  her  laws 
provide  for  compulsory  insurance  on  the  part  of  the  workman 
against  accident,  sickness,  or  old  age.  In  accident  insurance, 
the  workman  in  case  of  accident  receives  in  benefits  medical 
attendance  and  weekly  payments  based  on  his  earned  rate  of 
wages,  and  in  case  of  death  a  burial  benefit  and  a  pension  to 
those  dependent  on  him.  In  sickness  insurance,  which  is  also 
compulsory,  he  receives  in  benefits  a  weekly  sum  based  on  his 
earned  rate  of  wages,  medical  or  hospital  treatment  if  neces- 
sary, and  in  case  of  death  a  funeral  benefit  twenty  times  his 
weekly  wages.  Old  age  insurance,  also  compulsory,  entitles 
a  workman  at  the  age  of  70,  who  has  paid  the  compulsory 
contributions  for  not  less  than  1200  weeks,  to  receive  a  pen- 
sion for  the  remainder  of  his  life. 

In  1908  England  passed  an  old  age  pension  law,  differing 
markedly  from  the  insurance  system  in  Germany.  Under 
the  provisions  of  this  act,  no  contributions  are  exacted  from  the 
recipient  of  the  benefits.  Any  person  upon  reaching  the  age 
of  70,  who  has  been  a  resident  20  years  preceding  his  applica- 
tion, can  show  that  he  has  an  annual  income  of  less  than  $157.50, 
can  prove  that  he  has  been  industrious,  has  not  been  convicted 
of  a  criminal  offense,  may  claim  a  weekly  pension  of  not  more 
than  $1.25.  The  amount  of  the  pension  (about  $40,000,000 
in  1909)  is  taken  from  the  general  funds  derived  from  taxation. 


OPTIONAL   FUNCTIONS   OF   GOVERNMENT  293 

In  France,  Denmark,  and  the  Australian  countries  some 
form  of  state  insurance  has  also  been  introduced.  In  the 
United  States  the  idea  has  not  met  with  favor.  The  common- 
wealth of  Massachusetts  is  the  only  government  which  has 
passed  an  act  even  remotely  suggesting  state  insurance ;  namely, 
the  act  (1907)  which  allowed  savings  banks  to  sell  life  and  old 
age  insurance.  The  purpose  of  this  act  was  to  keep  down  the 
cost  of  insurance  administration  by  associating  the  insurance 
with  the  banks  and  by  providing  for  no  agents  or  solicitors. 
The  amount  of  insurance  contracted  for  under  the  provisions 
of  this  act  does  not  lead  one  to  believe  that  it  has  accomplished 
its  primary  purpose  of  encouraging  workingmen  to  insure. 

Regulative  Functions 

The  two  remaining  classes  of  optional  functions  differ  in 
character  from  those  discussed  above  in  that  they  are  mainly 
regulative  in  nature.  They  consist  in  an  attempt  by  the  gov- 
ernment to  benefit  the  whole  people  by  the  enactment  of  laws 
regulating  their  actions  under  stated  circumstances  rather 
than  (as  in  the  previous  classes  of  functions)  in  the  direct 
assumption  by  the  government  of  a  business  or  an  institution. 
These  regulative  functions  are  especially  obnoxious  to  the  in- 
dividualist, to  the  believer  in  the  laissez-faire  theory.  In  what- 
ever state  they  are  exercised,  insistent  criticism  of  the  govern- 
ment for  alleged  encroachment  on  individual  rights  is  made. 
The  defense  of  the  government  is,  stated  simply,  that  it  is 
acting  in  good  faith  for  the  greatest  good  of  the  greatest  num- 
ber of  its  citizens. 

IV.   INDUSTRIAL  REGULATION 

The  regulation  of  industrial  conditions  is  the  class  of  regu- 
lation which   has   aroused  most   open   and  bitter   criticism. 
Although  certain  industrial  conditions  have  been  industrial 
regulated  by  governments  from  time  immemorial  (as  regulation, 
foreign  trade  and  commerce),  the  wholesale  extension  of  gov- 


294   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

ernmental  regulation  to  such  things  as  the  amalgamation  of 
competing  business  concerns,  the  prices  charged  by  common 
carriers  (as  the  railroads),  the  age,  hours  of  labor,  conditions 
in  factories,  etc.,  is  fiercely  resented  by  interested  parties. 

For  convenience  in  treatment,  the  regulative  functions  of 
government  concerned  with  industrial  conditions  will  be  dis- 
cussed under  the  following  heads  :  (1)  Financial ;  (2)  Commer- 
cial ;  (3)  Business  or  corporation ;  (4)  Labor. 

The  institutions  which  together  compose  the  financial  system 
in  a  state  are  known  as  banks.  So  important  has  their  influ- 
l.  Finan-  ence  in  the  economic  life  and  prosperity  of  the  state 
cial-  become  that  now  hardly  any  one  questions  the  ad- 

vantage of  governmental  regulation  over  them.  To  under- 
stand the  nature  of  this  regulation,  a  general  notion  of  what  a 
bank  is  and  does  must  be  given. 

A  bank  is  an  establishment  for  the  custody,  loan,  exchange, 
or  issue  of  money.  It  receives  deposits  for  safekeeping  sub- 
ject to  draft  by  the  depositor;  it  invests  or  lends  for  interest 
the  money  intrusted  to  it  and  thus  earns  a  certain  amount  over 
and  above  the  expense  of  conducting  the  establishment;  and 
in  certain  cases  it  has  the  privilege  of  issuing  its  own  bank  notes 
to  be  used  as  currency.  In  providing  a  secure  place  for  the 
deposit  of  money  and  in  being  ready  at  any  time  to  pay  out  such 
money  when  required  by  the  depositor,  and  in  honoring  checks 
of  the  depositor  drawn  to  the  credit  of  another  person  and  trans- 
ferring the  funds  from  the  depositor  to  that  designated  person, 
a  bank  is  an  inestimable  convenience  to  its  community.  In 
providing  money  for  loan  in  response  to  legitimate  private 
needs  and  to  legitimate  business  enterprises,  a  bank  may  do 
much  toward  increasing  the  general  prosperity  of  the  com- 
munity. In  issuing  its  bank  notes  (which  are  nothing  more  or 
less  than  promises  to  pay  a  stipulated  amount  on  demand), 
a  bank  may  increase  the  flexibility  of  the  whole  system  by  pro- 
viding ample  currency  when  currency  is  urgently  needed  and 
by  taking  in  its  currency  when  the  need  is  slight.  Thus  in  all 
its  functions  a  bank  may  be  of  great  benefit  to  its  community, 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  295 

but  the  harm  to  its  community  if  a  bank  business  is  not  properly 
conducted  is  correspondingly  great.  For  if  a  bank  does  not 
safeguard  the  deposits  of  the  people,  the  bank  is  not  fulfilling 
one  of  its  primary  and  most  important  purposes,  and  ultimately 
must  fail.  And  if  a  bank  invests  its  depositors'  funds  in  poor 
securities,  or  lends  these  funds  to  borrowers  who  when  the  time 
comes  to  repay  are  unable  to  meet  their  obligations,  or  has  so 
much  of  its  depositors'  funds  invested  in  things  upon  which  it 
cannot  realize  quickly  that  it  is  unable  upon  the  demand  of 
any  considerable  number  of  its  depositors  to  pay  them  back 
their  money  —  if  a  bank  commits  any  of  these  faults,  it  is  cer- 
tain to  fail.  And  again,  if  a  bank  is  allowed  to  issue  its  bank 
notes  beyond  its  ability  to  pay,  ultimately  such  bank  notes 
will  constitute  an  overwhelming  liability  under  which  the  bank 
must  fail. 

The  failure  of  a  bank,  great  or  small,  is  a  public  calamity. 
The  depositors  are  left  without  funds,  the  confidence  of  the 
people  is  undermined,  and  the  radiations  from  a  single  bank 
failure  may  cause  the  failure  of  a  large  number  of  individuals 
and  business  firms.  The  stability  of  the  banks  and  of  the  whole 
banking  system  is  absolutely  essential  to  the  natural  course  of 
business  and  community  life.  It  is  in  the  realization  of  the 
dangers  to  the  community  in  bad  banking  that  the  government 
exercises  its  regulative  power  to  insure  good  banking. 

Regulation  commonly  takes  the  following  forms:  (a)  Re- 
quirement of  incorporation;  (6)  Requirement  of  a  stipulated 
minimum  of  capital  and  surplus ;  (c)  Liability  of  stockholders ; 
(d)  Regulation  of  investments;  (e)  Regulation  of  reserves; 
(/)  Regulation  of  note  issues ;  (g)  Public  inspection  and  super- 
vision. 

(a)  In  view  of  the  manifest  importance  of  the  banking  busi- 
ness to  the  community,  no  one  should  be  permitted  to  engage 
in  it  without  authority  from  the  government.  Hence  arises 
the  requirement  of  incorporation,  either  by  a  special  charter 
or  in  accordance  with  the  provisions  of  a  general  banking  law. 
Such  special  charter  or  general  law  states  the  conditions  under 


296      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

which  the  bank  shall  conduct  its  business.  Were  incorporation 
not  required,  it  would  be  impossible  for  the  government  to 
exercise  the  necessary  supervision  over  the  banks. 

(6)  The  requirement  of  a  certain  minimum  capital  and  sur- 
plus is  imposed  by  the  government  in  its  endeavor  to  secure 
to  depositors  in  a  bank  the  safety  of  their  deposits.  The  capital 
is  an  amount  directly  contributed  by  the  stockholders  or  pro- 
prietors of  the  bank,  and  the  surplus  is  an  additional  amount 
earned  and  set  aside  from  the  profits  of  the  business.  In  case 
a  bank  fails,  its  capital  and  surplus  may  be  used  to  pay  the 
depositors  and  other  creditors. 

(c)  In  some  states,  stockholders  in  banks  may  be  assessed 
for  an  amount  equal  to  their  holdings  in  case  the  bank  fails 
with  assets  insufficient  to  pay  the  depositors.     In  this  provision, 
again,  the  attempt  is  made  to  secure  above  everything  else 
the  safety  of  the  depositors'  funds. 

(d)  Governmental  regulation  of  a  bank's  investments  pre- 
sents a  difficult  problem.     The  success  of  a  bank  wholly  de- 
pends upon  these  investments,  and  yet  it  is  not  feasible  to  regu- 
late these  to  any  considerable  extent.     The  care  and  wisdom 
of  the  officers  and  directors  of  a  bank  must  be  trusted.     In 
some  commonwealths  of  the  United  States  the  banking  officials 
issue  lists  of  securities  which  are  legal  investment  for  certain 
classes  of  banks  within  the  commonwealth ;  the  national  banks 
of  the  United  States  are  restricted  by  a  general  law  in  the  mat- 
ter of  real  estate  investments;    all  the  banks  are  subject  to 
periodical  examination  by  governmental  commissioners  who 
determine  the  condition  of  the  bank. 

(e)  In  most  states  no  legal  requirements  with  regard  to  the 
reserves  exist.     The  United  States,  however,  and  its  common- 
wealths uniformly  require  a  certain  amount  of  reserve  funds  to 
be  kept  available,  the  amount  varying  from  15  per  cent  to 
25  per  cent. 

(/)  Restrictions  upon  bank-note  issues  are  most  necessary, 
for  if  bank  notes  are  unsecured  by  assets  of  equal  value,  disaster 
is  sure  to  follow.  In  England,  the  Bank  of  England  may  issue 


OPTIONAL   FUNCTIONS   OF   GOVERNMENT  297 

£18,450,000  in  bank  notes  upon  the  deposit  of  securities  to 
that  value,  and  may  issue  above  that  amount  only  by  the 
deposit  of  bullion  to  equal  value.  In  Germany,  banks  having 
the  right  to  issue  bank  notes  are  assigned  a  fixed  quota  to  be 
secured  by  the  deposit  of  one  third  cash  and  the  remainder  in 
first-class  bills  of  exchange.  In  France,  a  limit  is  set  by  law 
to  the  amount  of  issue  by  the  Bank  of  France.  In  the  United 
States,  national  banks  (which  are  the  only  ones  privileged 
to  issue  bank  notes)  must  deposit  government  bonds  with 
the  comptroller  of  the  currency  to  secure  their  issues,  and  then 
the  national  government  sends  the  bank  notes  to  the  bank 
and  guarantees  the  payment.  Such  national  banks  are  not 
allowed  to  issue  bank  notes  to  an  amount  greater  than  their 
paid-in  capital  stock.  These  various  regulations  will  illustrate 
the  care  with  which  governments  attempt  to  insure  the  safety 
of  the  bank-note  issues. 

(g)  Lastly,  periodical  examination  of  the  condition  of  the 
banks  by  governmental  officials  is  required  by  law,  that  any 
evidences  of  unsound  banking  may  be  detected.  In  addition 
to  this,  a  sworn  statement  of  each  bank's  condition  is  required 
to  be  published  at  certain  intervals.  The  accounts  of  the  Bank 
of  England  are  regularly  published  in  the  English  financial 
journals ;  banks  in  Germany  must  make  weekly  reports ;  the 
Bank  of  France  has  its  balance  sheet  published  each  Friday, 
and  must  furnish  the  government  with  a  full  statement  of  its 
condition  and  operations  each  six  months;  national  banks  in 
the  United  States  are  called  upon  five  times  annually  by  the 
comptroller  of  the  currency  for  reports,  and  these  reports  are 
published ;  banks  in  the  commonwealths  are  required  by  the  laws 
of  the  commonwealths  to  issue  periodical  statements  of  condition. 

As  this  is  being  written,  the  Congress  of  the  United  States 
has  passed,  and  the  President  has  approved,  certain  legislation 
for  the  reform  of  the  banking  system  in  this  country  The  Federai 
which  illustrates  well  how  far  the  government  is  Reserve  Act, 
willing  to  go  in  the  exercise  of  its  optional  functions.  1914> 
Under  the  provisions  of  this  legislation,  a  federal  reserve  board 


298      AN   INTRODUCTION   TO  THE   STUDY  OF  GOVERNMENT 

of  seven  members  is  established,  and  the  country  is  to  be  divided 
into  from  eight  to  twelve  federal  reserve  districts,  each  con- 
taining a  federal  reserve  bank  with  branch  banks.  Each 
federal  reserve  bank  is  the  bank  of  bankers :  its  capital  stock 
(minimum  $4,000,000)  is  to  be  subscribed  by  the  banks  of  its 
district;  its  government  is  in  a  board  of  nine  directors,  of 
whom  six  are  elected  by  the  member  banks;  it  can  accept 
no  deposits  from  any  persons,  concerns,  or  institutions  except 
banks  and  the  United  States ;  it  conducts  no  business  except 
with  banks;  and  its  dividends  are  limited  to  six  per  cent, 
any  excess  being  equally  apportioned  to  the  surplus  and  to  the 
government.  The  deposits  are  to  be  made  up  of  portions  of 
the  required  reserve  of  the  banks  of  the  district  in  the  system, 
of  deposits  of  funds  of  the  national  government,  and  (for  ex- 
change purposes  only)  funds  transferred  from  other  federal 
reserve  banks.  The  federal  reserve  banks  are,  under  stipulated 
conditions,  to  be  the  issuers  of  bank  notes  hereafter.  The  fed- 
eral reserve  banks  are  allowed  to  discount  for  any  member 
bank  its  notes,  drafts,  or  bills  of  exchange  arising  out  of  actual 
commercial  transactions,  and  special  provision  is  made  to  allow 
notes  and  the  like  secured  by  the  agricultural  products  or  other 
goods  or  merchandise  to  be  discounted  by  the  federal  reserve 
bank  for  its  member  banks.  Provision  is  also  made  for  one 
reserve  district  to  get  the  advantage  of  an  excess  of  funds  in 
other  reserve  districts.  Briefly,  the  proposed  system  seems 
to  establish  a  chain  of  money  reservoirs  with  connecting  pipes 
through  which  funds  may  pass  from  one  part  of  the  country 
to  another  as  need  occurs,  with  provision  that  from  each  reser- 
voir funds  may  be  sprayed  out  upon  call  to  the  various  member 
banks  of  the  district. 

The  next  class  of  industrial  regulation  is  the  regulation  of 
commerce.  The  governmental  regulation  of  commerce  is  not 
2  Regula.  new ;  in  the  form  of  tariffs  and  tolls  it  has  existed 
tionof  since  ancient  times.  The  history  of  commerce  in 
:ce>  any  state  is  inextricably  bound  up  with  the  history 
of  the  tariff.  The  governmental  tariffs  on  grain  in  England 


OPTIONAL  FUNCTIONS   OF  GOVERNMENT  299 

(the  "corn  laws")   of  the  early  nineteenth   century,  and  the 
English  navigation  laws  intended  to  insure  supremacy  in  the 
oceanic  carrying  trade  to  the  English  merchant  marine,  are 
striking  examples  of  the  governmental  regulation  of  commerce. 
In  the  United  States   the  government    has  exercised  this 
optional  function  to  an  extraordinary  degree  in  the  matter  of 
interstate  commerce.     By  a  law  of   Feb.  4,  1887,  united 
as  amended  in  subsequent  acts  down  to  1910,  an  states: 
Interstate  Commerce  Commission  of  seven  mem-  commerce 
bers  appointed  by  the  President  has  very  extensive  Commission 

.  :,      .    ,  „  .         £     ,,  and  Com- 

inquisitonal  powers  over  the  affairs  of  all  common  merce 
carriers  between  different  commonwealths.  Its  chief  Court, 
duties  are  to  prevent  unjust  discrimination  by  railroads 
among  various  shippers  and  to  secure  reasonable  and  just 
transportation  charges.  By  a  law  of  June  29,  1906  (Hepburn 
Act),  the  jurisdiction  of  the  commission  was  extended  to 
pipe  lines  conveying  oil  or  any  other  commodity  (except  water 
or  natural  gas)  and  to  express  companies  and  sleeping  car 
companies,  and  strict  provision  was  made  for  the  publication 
of  rates,  the  supervision  of  accounts  and  records,  etc.  To 
cap  the  whole,  a  special  Commerce  Court  was  created  by  the 
Act  of  June  18,  1910,  to  be  composed  of  five  judges  and  to 
have  exclusive  jurisdiction  over  all  cases  arising  under  the 
Interstate  Commerce  Act,  appeal  from  its  decisions  going 
directly  to  the  Supreme  Court  of  the  United  States.  The 
powers  granted  to  the  Interstate  Commerce  Commission  are 
among  those  powers  most  bitterly  criticised  by  the  opponents 
of  the  extension  of  governmental  functions. 

It  must  not  be  thought  that  governments  have  always  used 
their  optional  functions  affecting  commerce  for  the  purpose  of 
suppression.     In  the  United  States  huge  grants  of 
land  were  made  to  railroads  in  former  times  to  mer*g  ™m~ 
encourage  them  to  extend  their  lines  and  develop  commercial 
the  country ;   in  England  and  Germany,  at  present,  g^e^!8  by 
subsidies  in  one  form  or  another  are  bestowed  by  mental  reg- 
the  government  upon  certain  steamship  lines  to  ulati<m- 


300   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

encourage  the  increase  of  the  merchant  marine;  and  in  the 
United  States  the  government  has  at  various  times  imposed 
protective  tariffs  to  foster  the  beginnings  and  growth  of  home 
industries  of  certain  types. 

A  peculiar  form  of  the  extension  of  governmental  functions 
over  commerce  is  to  be  observed  in  so-called  "sumptuary" 
regulations  and  fiscal  monopolies.  Sumptuary  regulations 
are  regulations  imposed  with  the  primary  purpose  of  prevent- 
ing extravagance  on  the  part  of  the  people.  Thus  Switzer- 
land monopolizes  the  manufacture  of  alcohol  and  certain  al- 
coholic liquors  and  Japan  monopolizes  the  commerce  in  opium 
in  Formosa.  In  the  latter  case,  the  government  intends, 
probably,  to  regulate  the  traffic  to  the  point  of  suppression. 
Fiscal  monopolies  are  enterprises  monopolized  by  the  state 
primarily  for  the  revenue  to  be  derived  therefrom.  Thus 
France  monopolizes  the  manufacture  of  matches,  cigarettes, 
and  tobacco  in  general;  Prussia,  Austria,  Italy,  and  Spain 
maintain  public  lotteries ;  and  Japan  has  created  fiscal  monopo- 
lies in  many  articles  of  general  consumption. 

The  class  of  industrial  regulation  just  discussed  is  closely 
akin  to  the  next  class,  the  class  concerned  with  the  regulation 
3  Reguia-  °^  business  corporations.  In  this  country,  espe- 
tionof  cially,  the  "trust"  problem  has  been  a  live  issue 

business.  jn  recen£  times,  and  each  step  in  the  extension  of 
governmental  regulation  has  been  fiercely  fought. 

A  trust  is  an  organization  or  combination  of  a  number  of 
firms  or  corporations  engaged  in  the  same  line  of  business,  such 
organization  or  combination  being  formed  pri- 
"  trusts  "  marily  to  control  the  supply  and  price  of  its  products, 
in  the  The  trust  may  itself  be  a  corporation,  or  it  may  con- 

states* s*s^  °^  a  numDer  of  persons  or  business  corpora- 
tions united  by  mutual  contracts  or  agreements. 
The  trust  is,  it  is  contended  by  many,  a  natural  evolution  of 
business.  The  waste  due  to  keen  competition  among  a  num- 
ber of  business  firms  in  the  same  line  of  business  is  only  to  be 
eliminated  by  the  combination  of  these  firms  into  one  or  by 


OPTIONAL   FUNCTIONS   OF   GOVERNMENT  301 

their  operation  under  a  mutual  agreement  with  respect  to  terri- 
tory, selling  prices,  etc.  When  the  great  trusts  began  to  be 
formed  in  this  country,  they  had  many  defenders;  but  the 
advantage  that  huge  business  combinations  have  taken  of 
their  size  and  money  resources  to  stifle  legitimate  competition 
and  thus  create  for  themselves  an  absolute  monopoly  hi  pro- 
duction has  caused  a  general  revulsion  of  feeling.  In  general, 
it  has  become  evident  that  to  allow  any  combination  of  indi- 
viduals to  control  the  output  of  any  necessity  for  a  hundred 
millions  of  people  is  to  give  to  that  combination  more  power 
than  it  ought  to  have.  Such  a  situation  tends  to  result  in  a 
deterioration  of  product  and  a  rise  in  price.  Individual  ini- 
tiative for  the  invention  of  new  and  more  efficient  machinery 
required  in  such  a  business  is  stifled.  The  prices  offered  for 
the  raw  material  used  in  the  business  may,  where  a  single 
buyer  may  dictate  its  own  figures,  fall  to  almost  ruinous 
levels.  Stock  may  be  issued  to  an  amount  far  beyond  the 
value  of  the  combined  plants  (" stock  watering")  and  figures 
may  be  juggled  to  deceive  the  stockholders.  An  unhealthy 
moral  tone  may  result  from  continued  business  deception.  A 
number  of  such  combinations,  controlling  capital  to  a  stagger- 
ing amount,  may  easily  exercise  a  control  over  the  government 
itself. 

In  view  of  the  possibilities  and  the  facts,  important  legis- 
lation has  been  passed  both  by  the  federal  government  and  by 
the  commonwealth  governments  to  check  the  formation  of 
trusts  and  to  accomplish  the  dissolution  of  such  as  were  already 
formed.  The  most  important  of  these  laws  is  that  known  as 
the  Sherman  Anti-trust  Act  of  1890,  by  which,  in  the  words  of 
section  1,  "every  contract,  combination  in  the  form  of  trust 
or  otherwise,  or  conspiracy  in  restraint  of  trade  or  commerce 
among  the  several  States,  or  with  foreign  nations,  is  hereby 
declared  to  be  illegal.  Every  person  who  shall  make  any  such 
contract,  or  engage  in  any  such  combination  or  conspiracy, 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof,  shall  be  punished  by  fine  not  exceeding  $5000,  or  by 


302   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

imprisonment  not  exceeding  one  year,  or  by  both  said  punish- 
ments, in  the  discretion  of  the  court."  In  a  succeeding  section 
the  act  provides  that  any  person  injured  by  such  a  combination 
in  restraint  of  interstate  trade  may  recover  threefold  damages, 
with  costs.  Under  the  provisions  of  this  Sherman  Act,  the 
government  has  actually  caused  the  dissolution  of  two  great 
corporations  on  the  ground  that  they  were  trusts  (the  Standard 
Oil  Company  and  the  American  Tobacco  Company)  and  is  at 
the  present  time  carrying  on  cases  in  the  courts  against  various 
others.  The  decisions  of  the  Supreme  Court  in  test  cases  will 
operate  to  allow  efficiently  managed  and  non-monopolistic 
trusts  to  exist,  for  great  emphasis  is  laid  on  the  "rule  of  reason" 
in  construing  the  words  restraint  of  trade  in  the  Sherman  Act. 
Apparently  in  the  future  the  character  of  the  acts  of  a  combina- 
tion rather  than  the  form  of  organization  will  determine  whether 
or  not  it  is  illegal. 

The  aggregation  of  business  concerns  into  trusts  is  not 
confined  to  this  country;  in  France,  Austria,  and  Germany 
Trusts  in  trusts  in  one  form  or  another  abound.  In  Eng- 
foreign  land  the  trusts  have  little  influence,  owing  to  the  f  ree- 
ies'  trade  principles,  which  allow  the  unrestricted  com- 
petition of  foreign  producers  in  the  English  markets.  In 
Austria  and  Germany  it  is  probable  that  trusts  include  as  many 
industries  and  control  as  large  a  proportion  of  manufactures 
as  they  do  in  the  United  States.  These  industrial  combina- 
tions are  not  checked  by  law  in  foreign  countries  to  the  extent 
they  are  in  this  country.  France  has  a  law  prohibiting  com- 
binations of  the  chief  producers  with  a  view  to  controlling 
prices,  but  the  law  is  not  now  rigorously  enforced  and  there 
are  many  such  combinations.  A  somewhat  similar  situation 
exists  in  Austria,  where,  in  spite  of  a  law  to  the  contrary,  many 
great  combinations  exercise  a  marked  control  over  prices  and 
output.  In  Germany  price  agreements  are  legal,  but  if  the 
prices  fixed  are  unreasonable,  the  trust  is  liable  to  suit  in  the 
courts  for  extortion. 

The  last  of  the  classes  of  industrial  regulation  is  the  govern- 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  303 

mental  regulation  of  labor.    Modern  governments  have  gone 
to  extraordinary  lengths  to  protect  the  laborers  of  4  Reguia. 
various  types  and  in  various  kinds  of  work.  tion  of 

This  regulation  has  been  necessitated  chiefly  by  a  or* 
the  wholesale  introduction  of  machinery  and  its  results  upon 
industrial  conditions.  Where  communities  formerly  were  rural 
and  where  each  laborer  owned  his  own  means  of  production, 
suddenly  huge  factories  housing  the  means  of  production  for 
thousands  sprang  up  and  created  cities.  The  home  spinning 
wheel  could  not  compete  with  the  machine,  and  the  laborer 
was  forced  to  go  into  the  factory  and  use  the  capitalist's  ma- 
chine to  earn  a  living.  All  the  power  of  economic  life  or  death 
was  thus  suddenly  delivered  into  the  hands  of  the  capitalists. 
They  were  careless  of  their  employees'  lives,  for  the  empty 
places  were  soon  filled.  All  the  evils  of  child  labor,  too  long 
hours  of  labor,  unsanitary  factories,  improper  protection  against 
accidents,  were  allowed  to  flourish. 

It  required  a  generation  of  people  enduring  these  conditions 
to  arouse  the  public  conscience.  After  conscience  was  once 
aroused  and  trustworthy  investigations  had  revealed  the  true 
state  of  affairs,  remedial  legislation  was  soon  passed.  In 
England,  where  conditions  were  at  one  time  the  worst,  there 
is  now  a  complete  set  of  laws  securing  the  health  and  safety  of 
the  laborers  and  providing  for  periodical  official  inspections  of 
the  places  used  by  the  laborers.  In  other  countries  also,  as 
France,  Germany,  and  the  United  States,  the  government 
has  extended  its  functions  in  the  endeavor  to  secure  the  advan- 
tage of  the  laboring  classes. 

These  protective  labor  laws  are  not  only  intended  to  protect 
the  dependent  laborer  from  the  capitalist,  but  also  to  protect 
the  laborer  from  the  results  of  his  own  ignorance  or  careless- 
ness. The  ignorant  laborer  will  allow  his  small  children  to 
work  in  the  factory  for  the  pittance  that  their  wages  add  to  his 
income;  the  government  will  not  (in  most  states)  allow  chil- 
dren under  a  certain  age  to  be  employed  except  under  the 
most  favorable  conditions.  The  ignorant  or  careless  laborer 


304      AN   INTRODUCTION   TO   THE   STUDY  OF   GOVERNMENT 

will  accept  employment  involving  great  risk,  either  without 
knowledge  of  the  risk  or  with  the  belief  that  he  will  be  lucky 
enough  to  escape.  Here  again  the  government  intervenes 
with  special  laws  covering  employment  in  dangerous  trades 
and  with  legislation  placing  the  liability  for  disease,  accident, 
or  death  upon  the  employer. 

V.   PUBLIC  SAFETY  REGULATION 

The  fifth  great  class  of  optional  functions  includes  the  vari- 
ous regulations  which  government  enforces  in  its  effort  to  con- 
Public  serve  the  public  health  and  safety.  In  this  present 
safety  day,  when  the  causes  of  the  spread  of  disease  are 
regulation,  j^ter  understood  than  ever  before,  government 
exercises  a  control  over  sanitary  conditions  which  it  never 
attempted  to  exercise  in  previous  eras;  and  now,  with  the 
spread  of  democracy,  the  life  of  each  individual,  however  lowly, 
has  its  value,  which  government  recognizes  by  a  multitude  of 
regulations  intended  to  insure  safety. 

The  regulations  with  which  we  are  all  familiar  are  those 
which  impose  a  quarantine  upon  persons  suffering  from  a  con- 
Sanitary  tagious  disease  and  those  which  require  vaccination 
regulations.  or  inoculation  as  a  preventive  to  certain  diseases. 
The  national  government  provides  that  each  ship  that  comes 
to  its  shores  shall  be  inspected  for  the  presence  of  contagious 
disease.  In  this  country  the  federal  government  provides 
for  the  physical  examination  of  all  immigrants  before  they  are 
allowed  to  land.  Usually  the  local  governments  attend  to  the 
quarantine  of  persons  with  contagious  disease  in  their  locality. 
Vaccination  is  commonly  a  requirement  of  the  local  government 
in  communities,  and  is  rigidly  enforced  among  school  children. 

Side  by  side  with  the  physical  health,  government  tries  to 
protect  the  moral  health  of  its  people  by  the  regulation  of  pic- 
Regulation  tures,  posters,  and  printed  matter,  and  by  strict 
of  morals.  supervision  of  theaters,  dance  halls,  and  the  like. 
Such  regulation  is  commonly  undertaken  by  the  local  govern- 
ment. 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  305 

Another  way  in  which  the  government  extends  its  functions 
to  safeguard  health  and  life  is  by  inspection  of  certain  busi- 
nesses and  professions  which  closely  affect  the  _ 

,         _,  ,        ,,  ,.  Regulation 

people.     For  example,   the    sources   of  a   commu-  Ofbusi- 
nity's  milk  supply  come  under  government  super-  nesses  and 

.11.  <•    i     i  •  11.  i    professions. 

vision;  the  businesses  of  baking,  plumbing,  and 
slaughtering  are  carried  on  under  regulations  imposed  by  the 
government.  Doctors  and  dentists  can  secure  the  right  to 
practice  only  by  undergoing  a  governmental  examination. 
Even  the  chauffeur  must  prove  that  he  knows  how  to  handle 
an  automobile.  In  each  case  the  extension  of  governmental 
functions  is  warranted  by  the  fact  that  thus  disease  or  ac- 
cident may  be  avoided  and  lives  saved. 

In  general,  the  people  in  the  foremost  countries  have  become 
accustomed  to  the  interference  of  the  government  in  their 
affairs,  and  tend  to  acknowledge  that  such  interference  is 
justifiable  where  it  can  be  shown  that  the  people  as  a  whole 
may  be  benefited.  People  trust  their  own  government  more 
as  they  have  come  to  wield  a  greater  and  greater  influence  over 
it.  In  the  United  States  to-day,  the  mass  of  the  people  seem 
to  desire  an  extension  of  the  optional  functions  of  government 
rather  than  the  contraction  of  any  of  such  functions  which  the 
government  has  already  undertaken. 


Chap.  XII.     Statistics  and  Illustrative  Citations 


Right  to 
receive  old 
age  pension 


ENGLISH  OLD  AGE  PENSION  LAW 

An  Act  to  provide  for  Old  Age  Pensions 

(1st  August,  1908) 

BE  it  enacted  by  the  King's  Most  Excellent  Majesty,  by  and 
with  the  advice  and  consent  of  the  Lords  Spiritual  and 
Temporal,  and  Commons,  in  this  present  Parliament  assem- 
bled, and  by  the  authority  of  the  same,  as  follows : 

1.  (1)  Every  person  in  whose  case  the  condi- 
tions laid  down  by  this  Act  for  the  receipt  of  an 
old  age  pension  (in  this  Act  referred  to  as  statu- 
tory conditions)   are  fulfilled,  shall  be  entitled  to 
receive  such  a  pension  under  this  Act  so  long  as 
those  conditions  continue  to  be  fulfilled,  and  so  long 
as  he  is  not  disqualified  under  this  Act  for  the  receipt 
of  the  pension. 

(2)  An  old  age  pension  under  this  Act  shall  be  at 
the  rate  set  forth  in  the  schedule  to  this  Act. 

(3)  The  sums  required  for  the  payment  of  old 
age  pensions  under  this  Act  shall  be  paid  out  of 
moneys  provided  by  Parliament. 

(4)  The   receipt   of   an   old   age   pension   under 
this  Act  shall  not  deprive  the  pensioner  of  any 
franchise,  right,  or  privilege  or  subject  him  to  any 
disability. 

2.  The  statutory  conditions  for  the  receipt  of 
an  old  age  pension  by  any  person  are  — 

(1)  The  person  must  have  attained  the  age  of 
seventy : 

(2)  The  person  must  satisfy  the  pension  authori- 
ties that  for  at  least  twenty  years  up  to  the  date 
of  the  receipt  of  any  sum  on  account  of  a  pension 
he  has  been  a  British  subject,  and  has  had  his  resi- 
dence, as  defined  by  regulations  under  this  Act,  in 
the  United  Kingdom : 

306 


Statutory 
conditions 
for  receipt 
of  old  age 
pension. 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  307 

(3)  The  person  must  satisfy  the  pension  authori- 
ties that  his  yearly  means  as  calculated  under  this 
Act  do  not  exceed  thirty-one  pounds  ten  shillings. 

3.     (1)  A  person  shall  be  disqualified  for  receiving  Disqualifi- 
or  continuing  to  receive  an  old  age  pension  under  cfjion  for 
this   Act,    notwithstanding   the   fulfilment   of    the 
statutory  conditions  — 

(a)  While  he  is  in  receipt  of  any  poor  relief  (other 
than  relief   excepted  under  this    provision),   and, 
until   the   thirty-first   day   of   December   nineteen 
hundred  and  ten  unless  Parliament  otherwise  de- 
termines, if  he  has  at  any  time  since  the  first  day  of 
January  nineteen  hundred  and  eight  received,  or 
hereafter  receives,  any  such  relief :    Provided  that 
for  the  purposes  of  this  provision  — 

(i)  any  medical  or  surgical  assistance  (includ- 
ing food  or  comforts)  supplied  by  or  on  the  recom- 
mendation of  a  medical  officer ;  or 

(ii)  any  relief  given  to  any  person  by  means  of 
the  maintenance  of  any  dependant  of  that  person 
in  any  lunatic  asylum,  infirmary,  or  hospital,  or  the 
payment  of  any  expenses  of  the  burial  of  a  depend- 
ant; or 

(Hi)  any  relief  (other  than  medical  or  surgical 
assistance,  or  relief  herein-before  specifically  ex- 
empted) which  by  law  is  expressly  declared  not  to 
be  a  disqualification  for  registration  as  a  parlia- 
mentary elector,  or  a  reason  for  depriving  any 
person  of  any  franchise,  right,  or  privilege;  shall 
not  be  considered  as  poor  relief : 

(b)  If,  before  he  becomes  entitled  to  a  pension, 
he  has  habitually  failed  to  work  according  to  his 
ability,  opportunity,  and  need,  for  the  maintenance 
or  benefit  of  himself  and  those  legally  dependent 
upon  him : 

Provided  that  a  person  shall  not  be  disqualified 
under  this  paragraph  if  he  has  continuously  for  ten 
years  up  to  attaining  the  age  of  sixty,  by  means  of 
payments  to  friendly,  provident,  or  other  societies, 
or  trade  unions,  or  other  approved  steps,  made  such 
provision  against  old  age,  sickness,  infirmity,  or 
want  or  loss  of  employment  as  may  be  recognized  as 
proper  provision  for  the  purpose  by  regulations  under 


308      AN   INTRODUCTION   TO   THE   STUDY   OF   GOVERNMENT 

this  Act,  and  any  such  provision,  when  made  by 
the  husband  in  the  case  of  a  married  couple  living 
together,  shall  as  respects  any  right  of  the  wife 
to  a  pension,  be  treated  as  provision  made  by  the 
wife  as  well  as  by  the  husband : 

53  &  64  (c)  While  he  is  detained  in  any  asylum  within 

Viet.  c.  5.  the  meaning  of  the  Lunacy  Act,  1890,  or  while  he  is 
being  maintained  in  any  place  as  a  pauper  or  crimi- 
nal lunatic : 

(d)  During  the  continuance  of  any  period  of  dis- 
qualification arising  or  imposed  in  pursuance  of  this 
section  in  consequence  of  conviction  for  an  offence. 

(2)  Where  a  person  has  been  before  the  passing 
of  this  Act,  or  is  after  the  passing  of  this  Act,  con- 
victed of  any  offence,  and  ordered  to  be  imprisoned 
without  the  option  of  a  fine  or  to  suffer  any  greater 
punishment,  he  shall  be  disqualified  for  receiving 
or  continuing  to  receive  an  old  age  pension  under 
this  Act  while  he  is  detained  in  prison  in  conse- 
quence of  the  order,  and  for  a  further  period  of  ten 
years  after  the  date  on  which  he  is  released  from 
prison. 

(3)  Where  a  person  of  sixty  years  of  age  or  up- 
wards having  been  convicted  before  any  court  is 
liable  to  have  a  detention  order  made  against  him 

61  &  62  under  the  Inebriates  Act,  1898,  and  is  not  necessa- 
Vict.  c.  60.  rily,  by  virtue  of  the  provisions  of  this  Act,  disquali- 
fied for  receiving  or  continuing  to  receive  an  old 
age  pension  under  this  Act,  the  court  may,  if  they 
think  fit,  order  that  the  person  convicted  be  so  dis- 
qualified for  such  period,  not  exceeding  ten  years,  as 
the  court  direct. 

******* 

Commence-       12.   (1)  A  person  shall  not  be   entitled  to  the 

ment  and      receipt  of  an  old  age  pension  under  this  Act  until 

ort  title.     the  firgt  day  of  january  nineteen  hundred  and  nine 

and  no  such  pension  shall  begin  to  accrue  until  that 

day. 

(2)  This  Act  may  be  cited  as  the  Old  Age  Pensions 
Act,  1908. 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT 


309 


Schedule 


MEANS  OP  PENSIONER 


RATE  OP  PEN- 
SION PER  WEEK 


Where  the  yearly  means  of  the  pensioner  as  calculated 
under  this  Act  — 

Do  not  exceed  211 

Exceed  211. ,  but  do  not  exceed  23Z.  12s.  Qd 

Exceed  23Z.  12s.  6d.,  but  do  not  exceed  261.  5s.  ... 
Exceed  261.  5s.,  but  do  not  exceed  281.  17s.  6d.  .  .  . 
Exceed  281.  17s.  6d.,  but  do  not  exceed  31Z.  10s.  .  . 
Exceed  311.  10s.  


s.  d. 

5  0 

4  0 

3  0 

2  0 

1  0 

No  pension 


THE  SHERMAN  ANTI-TRUST  ACT 

CHAP.  647.  —  An  act  to  protect  trade  and  commerce  against 
unlawful  restraints  and  monopolies. 

Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Con- 
gress assembled. 

SECTION  1.  Every  contract,  combination  in  the 
form  of  trust  or  otherwise,  or  conspiracy,  in  re- 
straint of  trade  or  commerce  among  the  several 
States,  or  with  foreign  nations,  is  hereby  declared 
to  be  illegal.  Every  person  who  shall  make  any 
such  contract  or  engage  in  any  such  combination 
or  conspiracy,  shall  be  deemed  guilty  of  a  misde- 
meanor, and,  on  conviction  thereof,  shall  be  punished 
by  fine  not  exceeding  five  thousand  dollars,  or  by 
imprisonment  not  exceeding  one  year,  or  by  both 
said  punishments,  in  the  discretion  of  the  court. 

SEC.  2.  Every  person  who  shall  monopolize,  or 
attempt  to  monopolize,  or  combine  or  conspire  with 
any  other  person  or  persons,  to  monopolize  any  part 
of  the  trade  or  commerce  among  the  several  States, 
or  with  foreign  nations  shall  be  deemed  guilty  of  a 
misdemeanor,  and,  on  conviction  thereof,  shall  be 
punished  by  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  not  exceeding  one  year,  or  by 
both  said  punishments,  in  the  discretion  of  the  court. 


Trusts,  etc., 
in  the 
States,  in 
restraint  of 
trade,  etc., 
illegal. 


Persons 
combining, 
guilty  of 
misde- 
meanor. 

Penalty. 

Persons  at- 
tempting to 
monopolize, 
etc.,  guilty 
of  misde- 


Penalty. 


310      AN   INTRODUCTION   TO   THE   STUDY  OF  GOVERNMENT 


Trusts,  etc., 
in  Terri- 
tories or 
District  of 
Columbia 
illegal. 


Persons  en- 
gaged 
therein 
guilty  of 
misde- 
meanor. 

Penalty. 

Jurisdic- 
tion of 
United 
States  cir- 
cuit courts. 

Prosecuting 
officers. 

Procedure. 


Hearing, 
etc. 


Temporary 
restraining 
order,  etc. 


Process. 


Trusts,  etc., 
property  in 


SEC.  3.  Every  contract,  combination  in  form  of 
trust  or  otherwise,  or  conspiracy,  in  restraint  of 
trade  or  commerce  in  any  Territory  of  the  United 
States  or  of  the  District  of  Columbia,  or  in  restraint 
of  trade  or  commerce  between  any  such  Territory 
and  another,  or  between  any  such  Territory  or  Terri- 
tories and  any  State  or  States  or  the  District  of  Colum- 
bia, or  with  foreign  nations,  or  between  the  District  of 
Columbia  and  any  State  or  States  or  foreign  nations, 
is  hereby  declared  illegal.  Every  person  who  shall 
make  any  such  contract  or  engage  in  any  such  com- 
bination, or  conspiracy,  shall  be  deemed  guilty  of  a 
misdemeanor,  and,  on  conviction  thereof,  shall  be 
punished  by  fine  not  exceeding  five  thousand  dollars, 
or  by  imprisonment  not  exceeding  one  year,  or  by 
both  said  punishments,  in  the  discretion  of  the  court. 

SEC.  4.  The  several  circuit  courts  of  the  United 
States  are  hereby  invested  with  jurisdiction  to  pre- 
vent and  restrain  violations  of  this  act ;  and  it  shall 
be  the  duty  of  the  several  district  attorneys  of  the 
United  States,  in  their  respective  districts,  under  the 
direction  of  the  Attorney-General,  to  institute  pro- 
ceedings in  equity  to  prevent  and  restrain  such 
violations.  Such  proceedings  may  be  by  way  of 
petition  setting  forth  the  case  and  praying  that  such 
violation  shall  be  enjoined  or  otherwise  prohibited. 
When  the  parties  complained  of  shall  have  been 
duly  notified  of  such  petition  the  court  shall  proceed, 
as  soon  as  may  be,  to  the  hearing  and  determination 
of  the  case ;  and  pending  such  petition  and  before 
final  decree,  the  court  may  at  any  time  make  such 
temporary  restraining  order  or  prohibition  as  shall 
be  deemed  just  in  the  premises. 

SEC.  5.  Whenever  it  shall  appear  to  the  court 
before  which  any  proceeding  under  section  four  of 
this  act  may  be  pending,  that  the  ends  of  justice 
require  that  other  parties  should  be  brought  before 
the  court,  the  court  may  cause  them  to  be  summoned, 
whether  they  reside  in  the  district  in  which  the  court 
is  held  or  not ;  and  subpoenas  to  that  end  may  be 
served  in  any  district  by  the  marshal  thereof. 

SEC.  6.  Any  property  owned  under  any  contract 
or  by  any  combination,  or  pursuant  to  any  conspir- 


OPTIONAL  FUNCTIONS  OF  GOVERNMENT 


311 


acy  (and  being  the  subject  thereof)  mentioned  in 
section  one  of  this  act,  and  being  in  the  course  of 
transportation  from  one  State  to  another,  or  to  a 
foreign  country,  shall  be  forfeited  to  the  United 
States,  and  may  be  seized  and  condemned  by  like 
proceedings  as  those  provided  by  law  for  the  for- 
feiture, seizure,  and  condemnation  of  property  im- 
ported into  the  United  States  contrary  to  law. 

SEC.  7.  Any  person  who  shall  be  injured  in  his 
business  or  property  by  any  other  person  or  corpora- 
tion by  reason  of  anything  forbidden  or  declared  to 
be  unlawful  by  this  act,  may  sue  therefor  in  any 
circuit  court  of  the  United  States,  in  the  district  in 
which  the  defendant  resides  or  is  found,  without 
respect  to  the  amount  in  controversy,  and  shall 
recover  threefold  the  damages  by  him  sustained, 
and  the  costs  of  suit,  including  a  reasonable  attor- 
ney's fee. 

SEC.  8.  That  the  word  "person,"  or  "persons," 
wherever  used  in  this  act  shall  be  deemed  to  include 
corporations  and  associations  existing  under  or  au- 
thorized by  the  laws  of  either  the  United  States,  the 
laws  of  any  of  the  Territories,  the  laws  of  any 
State,  or  the  laws  of  any  foreign  country. 

Approved,  July  2,  1890. 

(United  States  Statutes  at  Large, 
51st  Congress,  1889-1891.) 


transit. 
Ante,  p.  309. 

Forfeiture, 
seizure, 
and  con- 
demnation. 


Damages. 

Litigation. 
Recovery. 


"Person," 
or  "  per- 
sons," de- 
fined. 


3 

SUMMAKY  OF  PARAGRAPHS  IN,  AND  EXTRACTS  FROM,  THE  ACT 
TO  REGULATE  COMMERCE,  KNOWN  AS  THE  INTERSTATE  COM- 
MERCE  ACT 

SECTION  1.  [Summary.  Provides  that  the  provisions  of 
the  act  apply  (1)  to  corporations  or  persons  engaged  in  the 
transportation  of  oil  or  other  commodity  except  water  and 
gas  by  pipe  lines,  (2)  to  telegraph,  telephone,  and  cable  com- 
panies, (3)  to  railroads,  (4)  to  express  companies  and  sleeping 
car  companies,  in  so  far  as  any  of  these  classes  of  carriers  engage 
in  an  interstate  business :  and  provides  that  such  carriers 
furnish  service  at  just  and  reasonable  rates.] 


312      AN   INTRODUCTION   TO  THE   STUDY  OF   GOVERNMENT 

SEC.  2.  That  if  any  common  carrier  subject  to  the  provi- 
sions of  this  act  shall,  directly  or  indirectly,  by  any  special 
rate,  rebate,  drawback,  or  other  device,  charge,  demand,  col- 
lect, or  receive  from  any  person  or  persons  a  greater  or  less 
compensation  for  any  service  rendered,  or  to  be  rendered,  in 
the  transportation  of  passengers  or  property,  subject  to  the 
provisions  of  this  act,  than  it  charges,  demands,  collects,  or 
receives  from  any  other  person  or  persons  for  doing  for  him  or 
them  a  like  and  contemporaneous  service  in  the  transportation 
of  a  like  kind  of  traffic  under  substantially  similar  circumstances 
and  conditions,  such  common  carrier  shall  be  deemed  guilty 
of  unjust  discrimination,  which  is  hereby  prohibited  and  de- 
clared to  be  unlawful. 

SEC.  3.  That  it  shall  be  unlawful  for  any  common  carrier 
subject  to  the  provisions  of  this  act  to  make  or  give  any  undue 
or  unreasonable  preference  or  advantage  to  any  particular 
person,  company,  firm,  corporation,  or  locality,  or  any  partic- 
ular description  of  traffic  in  any  respect,  whatsoever,  or  to 
subject  any  particular  person,  company,  firm,  corporation,  or 
locality,  or  any  particular  description  of  traffic,  to  any  undue 
or  unreasonable  prejudice  or  disadvantage  in  any  respect 
whatsoever. 

Every  common  carrier  subject  to  the  provisions  of  this  act 
shall,  according  to  their  respective  powers,  afford  all  reasonable, 
proper,  and  equal  facilities  for  the  interchange  of  traffic,  be- 
tween their  respective  lines,  and  for  the  receiving,  forwarding, 
and  delivering  of  passengers  and  property  to  and  from  their 
several  lines  and  those  connecting  therewith,  and  shall  not 
discriminate  in  their  rates  and  charges  between  such  connecting 
lines ;  but  this  shall  not  be  construed  as  requiring  any  such  com- 
mon carrier  to  give  the  use  of  its  tracks  or  terminal  facilities 
to  another  carrier  engaged  in  like  business. 

SEC.  4.  [Summary.  Provides  that  it  shall  be  unlawful 
to  charge  more  for  a  " short  haul"  than  for  a  long  haul,  except 
in  special  cases  approved  by  Interstate  Commerce  Commission.] 

SEC.  5.  That  it  shall  be  unlawful  for  any  common  carrier 
subject  to  the  provisions  of  this  act  to  enter  into  any  contract, 
agreement,  or  combination  with  any  other  common  carrier 
or  carriers  for  the  pooling  of  freights  of  different  and  competing 
railroads,  or  to  divide  between  them  the  aggregate  or  net  pro- 
ceeds of  the  earnings  of  such  railroads,  or  any  portion  thereof ; 
and  in  any  case  of  an  agreement  for  the  pooling  of  freights  as 
aforesaid,  each  day  of  its  continuance  shall  be  deemed  a  sepa- 
rate offense. 


OPTIONAL  FUNCTIONS   OF  GOVERNMENT  313 

SEC.  6.  [Summary.  That  the  common  carriers  shall  file 
with  the  Interstate  Commerce  Commission  and  make  public 
their  schedules  showing  all  the  rates,  fares,  and  charges  for 
transportation,  that  rates  shall  not  be  changed  without  due 
notice  to  the  commission,  and  that  in  time  of  war  or  threatened 
war  preference  and  precedence  shall  be  given  to  military 
needs.] 

SEC.  7.  [Summary.  That  it  shall  be  unlawful  to  combine  to 
prevent  continuous  shipment.] 

SEC.  8.  [Summary.  That  common  carriers  are  liable  to 
damages  and  costs  in  case  of  failure  to  observe  the  provisions 
of  the  law.] 

SEC.  9.  [Summary.  That  persons  may  complain  to  the 
Interstate  Commerce  Commission  or  bring  suit  in  any  district  or 
circuit  court  in  case  they  feel  damaged  by  any  common  carrier.] 

SEC.  10.  [Summary.  Prescribes  the  penalties  for  violations 
of  the  act.] 

SEC.  11.  That  a  commission  is  hereby  created  and  es- 
tablished to  be  known  as  the  Interstate  Commerce  Commission, 
which  shall  be  composed  of  five  Commissioners,  who  shall  be 
appointed  by  the  President,  by  and  with  the  advice  and  con- 
sent of  the  Senate.  The  Commissioners  first  appointed  under 
this  Act  shall  continue  in  office  for  the  term  of  two,  three,  four, 
five,  and  six  years,  respectively,  from  the  first  day  of  January, 
Anno  Domini  eighteen  hundred  and  eighty-seven,  the  term  of 
each  to  be  designated  by  the  President;  but  their  successors 
shall  be  appointed  for  terms  of  six  years,  except  that  any  person 
chosen  to  fill  a  vacancy  shall  be  appointed  only  for  the  unex- 
pired  time  of  the  Commissioner  whom  he  shall  succeed.  Any 
Commissioner  may  be  removed  by  the  President  for  inefficiency, 
neglect  of  duty  or  malfeasance  in  office.  Not  more  than  three 
of  the  Commissioners  shall  be  appointed  from  the  same  polit- 
ical party.  No  person  in  the  employ  of  or  holding  any  official 
relation  to  any  common  carrier  subject  to  the  provisions  of 
this  act,  or  owning  stock  or  bonds  thereof,  or  who  is  in  any 
manner  pecuniarily  interested  therein,  shall  enter  upon  the 
duties  of  or  hold  such  office.  Said  Commissioners  shall  not 
engage  in  any  other  business,  vocation  or  employment.  No 
vacancy  in  the  Commission  shall  impair  the  right  of  the  remain- 
ing Commissioners  to  exercise  all  the  powers  of  the  Commission. 

NOTE.  —  By  subsequent  legislation  (June  29,  1906)  the  Commission 
was  enlarged  to  seven  members,  the  terms  were  made  seven  years,  and 
the  pay  was  raised  to  $10,000  each. 


314   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

SEC.  12.  That  the  Commission  hereby  created  shall  have 
authority  to  inquire  into  the  management  of  the  business  of 
all  common  carriers  subject  to  the  provisions  of  this  Act,  and 
shall  keep  itself  informed  as  to  the  manner  and  method  in  which 
the  same  is  conducted,  and  shall  have  the  right  to  obtain  from 
such  common  carriers  full  and  complete  information  necessary 
to  enable  the  Commission  to  perform  the  duties  and  carry  out 
the  objects  for  which  it  was  created;  and  the  Commission  is 
hereby  authorized  and  required  to  execute  and  enforce  the 
provisions  of  this  Act ;  and,  upon  the  request  of  the  Commission, 
it  shall  be  the  duty  of  any  district  attorney  of  the  United 
States  to  whom  the  Commission  may  apply  to  institute  in  the 
proper  court  and  to  prosecute  under  the  direction  of  the  Attor- 
ney-General of  the  United  States  all  necessary  proceedings  for 
the  enforcement  of  the  provisions  of  this  Act  and  for  the  punish- 
ment of  all  violations  thereof,  and  the  costs  and  expenses  of 
such  prosecution  shall  be  paid  out  of  the  appropriation  for  the 
expenses  of  the  courts  of  the  United  States ;  and  for  the  pur- 
poses of  .this  Act  the  Commission  shall  have  power  to  require, 
by  subpoena,  the  attendance  and  testimony  of  witnesses  and 
the  production  of  all  books,  papers,  tariffs,  contracts,,  agree- 
ments, and  documents  relating  to  any  matter  under  investi- 
gation. .  .  . 

SEC.  13.  [Summary.  Provides  for  the  manner  of  making 
complaints  to  the  Commission  and  the  manner  in  which  com- 
plaints are  to  be  served  upon  the  carriers.] 

SEC.  14.  [Summary.  Provides  for  reports  to  be  made  by 
the  Commission.] 

SEC.  15.  That  whenever,  after  full  hearing  upon  a  complaint 
made  as  provided  in  section  thirteen  of  this  Act,  or  after  full 
hearing  under  an  order  for  investigation  and  hearing  made  by 
the  Commission  on  its  own  initiative  (either  in  extension  of 
any  pending  complaint  or  without  any  complaint  whatever) 
the  Commission  shall  be  of  opinion  that  any  individual  or  joint 
rates  or  charges  whatsoever  demanded,  charged,  or  collected 
by  any  common  carrier  or  carriers  subject  to  the  provisions  of 
this  Act,  for  the  transportation  of  persons  or  property  or  for 
the  transmission  of  messages  by  telegraph  or  telephone  as 
denned  in  the  first  section  of  this  Act,  or  that  any  individual 
or  joint  classifications,  regulations,  or  practices  whatsoever 
of  such  carrier  or  carriers  subject  to  the  provisions  of  this  Act 
are  unjust  or  unreasonable  or  unjustly  discriminatory,  or  unduly 
preferential  or  prejudicial  or  otherwise  in  violation  of  any  of 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  315 

the  provisions  of  this  Act,  the  Commission  is  hereby  authorized 
and  empowered  to  determine  and  prescribe  what  will  be  the 
just  and  reasonable  individual  or  joint  rate  or  rates,  charge 
or  charges,  to  be  thereafter  observed  in  such  case  as  the  maxi- 
mum to  be  charged,  and  what  individual  or  joint  classification, 
regulation,  or  practice  is  just,  fair,  and  reasonable,  to  be  there- 
after followed,  and  to  make  an  order  that  the  carrier  or  carriers 
shall  cease  and  desist  from  such  violation  to  the  extent  to  which 
the  Commission  finds  the  same  to  exist,  and  shall  not  there- 
after publish,  demand,  or  collect  any  rate  or  charge  for  such 
transportation  or  transmission  in  excess  of  the  maximum  rate 
or  charge  so  prescribed  and  shall  adopt  the  classification  and 
shall  conform  to  and  observe  the  regulation  or  practice  so  pre- 
scribed. All  orders  of  the  Commission,  except  orders  for  the 
payment  of  money,  shall  take  effect  within  such  reasonable 
time,  not  less  than  thirty  days,  and  shall  continue  in  force  for 
such  period  of  time,  not  exceeding  two  years,  as  shall  be  pre- 
scribed in  the  order  of  the  Commission,  unless  the  same  shall 
be  suspended  or  modified  or  set  aside  by  the  Commission,  or  be 
suspended  or  set  aside  by  a  court  of  competent  jurisdiction. 
Whenever  the  carrier  or  carriers,  in  obedience  to  such  order 
of  the  Commission  or  otherwise,  in  respect  to  joint  rates,  fares, 
or  charges,  shall  fail  to  agree  among  themselves  upon  the 
apportionment  or  division  thereof  the  Commission  may,  after 
hearing,  make  a  supplemental  order  prescribing  the  just  and 
reasonable  proportion  of  such  joint  rate  to  be  received  by  each 
carrier  party  thereto,  which  order  shall  take  effect  as  a  part 
of  the  original  order. 

Whenever  there  shall  be  filed  with  the  Commission  any 
schedule  stating  a  new  individual  or  joint  rate,  fare,  or  charge, 
or  any  new  individual  or  joint  classification,  or  any  new  indi- 
vidual or  joint  regulation  or  practice  affecting  any  rate,  fare, 
or  charge,  the  Commission  shall  have,  and  it  is  hereby  given, 
authority,  either  upon  complaint  or  upon  its  own  initiative 
without  complaint,  at  once,  and  if  it  so  orders,  without  answer 
or  other  formal  pleading  by  the  interested  carrier  or  carriers, 
but  upon  reasonable  notice,  to  enter  upon  a  hearing  concerning 
the  propriety  of  such  rate,  fare,  charge,  classification,  regula- 
tion, or  practice;  and  pending  such  hearing  and  the  decision 
thereon  the  Commission  upon  filing  with  such  schedule  and 
delivering  to  the  carrier  or  carriers  affected  thereby  a  statement 
in  writing  of  its  reasons  for  such  suspension  may  suspend  the 
operation  of  such  schedule  and  defer  the  use  of  such  rate,  fare, 


316   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

charge,  classification,  regulation,  or  practice,  but  not  for  a 
longer  period  than  one  hundred  and  twenty  days  beyond  the 
time  when  such  rate,  fare,  charge,  classification,  regulation, 
or  practice  would  otherwise  go  into  effect ;  and  after  full  hear- 
ing, whether  completed  before  or  after  the  rate,  fare,  charge, 
classification,  regulation,  or  practice  goes  into  effect,  the  Com- 
mission may  make  such  order  in  reference  to  such  rate,  fare, 
charge,  classification,  regulation,  or  practice  as  would  be  proper 
in  a  proceeding  initiated  after  the  rate,  fare,  charge,  classifi- 
cation, regulation,  or  practice  had  become  effective :  Provided, 
That  if  any  such  hearing  cannot  be  concluded  within  the  period 
of  suspension,  as  above  stated,  the  Interstate  Commerce  Com- 
mission may,  in  its  discretion,  extend  the  time  of  suspension 
for  a  further  period  not  exceeding  six  months.  At  any  hearing 
involving  a  rate  increased  after  January  first,  nineteen  hundred 
and  ten,  or  of  a  rate  sought  to  be  increased  after  the  passage 
of  this  Act,  the  burden  of  proof  to  show  that  the  increased  rate 
or  proposed  increased  rate  is  just  and  reasonable  shall  be  upon 
the  common  carrier,  and  the  Commission  shall  give  to  the  hear- 
ing and  decision  of  such  questions  preference  over  all  other 
questions  pending  before  it  and  decide  the  same  as  speedily 
as  possible. 

The  Commission  may  also,  after  hearing,  on  a  complaint  or 
upon  its  own  initiative  without  complaint,  establish  through 
routes  and  joint  classifications,  and  may  establish  joint  rates 
as  the  maximum  to  be  charged  and  may  prescribe  the  division 
of  such  rates  as  hereinbefore  provided  and  the  terms  and  condi- 
tions under  which  such  through  routes  shall  be  operated,  when- 
ever the  carriers  themselves  shall  have  refused  or  neglected 
to  establish  voluntarily  such  through  routes  or  joint  classifi- 
cations or  joint  rates;  and  this  provision  shall  apply  when 
one  of  the  connecting  carriers  is  a  water  line.  The  Commission 
shall  not,  however,  establish  any  through  route,  classification, 
or  rate  between  street  electric  passenger  railways  not  engaged 
in  the  general  business  of  transporting  freight  in  addition  to 
their  passenger  and  express  business  and  railroads  of  a  different 
character,  nor  shall  the  Commission  have  the  right  to  establish 
any  route,  classification,  rate,  fare,  or  charge  when  the  trans- 
portation is  wholly  by  water,  and  any  transportation  by  water 
affected  by  this  Act  shall  be  subject  to  the  laws  and  regulations 
applicable  to  transportation  by  water. 

And  in  establishing  such  through  route,  the  commission 
shall  not  require  any  company,  without  its  consent,  to  embrace 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  317 

in  such  route  substantially  less  than  the  entire  length  of  its 
railroad  and  of  any  intermediate  railroad  operated  in  conjunc- 
tion and  under  a  common  management  or  control  therewith 
which  lies  between  the  termini  of  such  proposed  through 
route,  unless  to  do  so  would  make  such  through  route  unrea- 
sonably long  as  compared  with  another  practicable  through 
route  which  could  otherwise  be  established. 

In  all  cases  where  at  the  time  of  delivery  of  property  to  any 
railroad  corporation  being  a  common  carrier  for  transporta- 
tion subject  to  the  provisions  of  this  Act  to  any  point  of  des- 
tination, between  which  and  the  point  of  such  delivery  for 
shipment  two  or  more  through  routes  and  through  rates  shall 
have  been  established  as  in  this  Act  provided  to  which  through 
routes  and  through  rates  such  carrier  is  a  party,  the  person, 
firm,  or  corporation  making  such  shipment,  subject  to  such 
reasonable  exceptions  and  regulations  as  the  Interstate  Com- 
merce Commission  shall  from  time  to  time  prescribe,  shall  have 
the  right  to  designate  in  writing  by  which  of  such  through  routes 
such  property  shall  be  transported  to  destination,  and  it  shall 
thereupon  be  the  duty  of  the  initial  carrier  to  route  said  prop- 
erty and  issue  a  through  bill  of  lading  therefor  as  so  directed, 
and  to  transport  said  property  over  its  own  line  or  lines  and 
deliver  the  same  to  a  connecting  line  or  lines  according  to  such 
through  route,  and  it  shall  be  the  duty  of  each  of  said  connect- 
ing carriers  to  receive  said  property  and  transport  it  over  the 
same  line  or  lines  and  deliver  the  same  to  the  next  succeeding 
carrier  or  consignee  according  to  the  routing  instructions  in 
said  bill  of  lading :  Provided,  however,  That  the  shipper  shall 
in  all  instances  have  the  right  to  determine,  where  competing 
lines  of  railroad  constitute  portions  of  a  through  line  or  route, 
over  which  of  said  competing  lines  so  constituting  a  portion  of 
said  through  line  or  route  his  freight  shall  be  transported. 

It  shall  be  unlawful  for  any  common  carrier  subject  to  the 
provisions  of  this  Act,  or  any  officer,  agent,  or  employee  of 
such  common  carrier,  or  for  any  other  person  or  corporation 
lawfully  authorized  by  such  common  carrier  to  receive  informa- 
tion therefrom,  knowingly  to  disclose  to  or  permit  to  be  ac- 
quired by  any  person  or  corporation  other  than  the  shipper  or 
consignee,  without  the  consent  of  such  shipper  or  consignee, 
any  information  concerning  the  nature,  kind,  quantity,  des- 
tination, consignee,  or  routing  of  any  property  tendered  or 
delivered  to  such  common  carrier  for  interstate  transportation 
which  information  may  be  used  to  the  detriment  or  prejudice 


318   AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

of  such  shipper  or  consignee,  or  which  may  improperly  dis- 
close his  business  transactions  to  a  'competitor;  and  it  shall 
also  be  unlawful  for  any  person  or  corporation  to  solicit  or 
knowingly  receive  any  such  information  which  may  be  so  used  : 
Provided,  That  nothing  in  this  Act  shall  be  construed  to  prevent 
the  giving  of  such  information  in  response  to  any  legal  process 
issued  under  the  authority  of  any  state  or  federal  court,  or  to 
any  officer  or  agent  of  the  Government  of  the  United  States, 
or  of  any  State  or  Territory,  in  the  exercise  of  his  powers,  or 
to  any  officer  or  other  duly  authorized  person  seeking  such  in- 
formation for  the  prosecution  of  persons  charged  with  or  sus- 
pected of  crime;  or  information  given  by  a  common  carrier 
to  another  carrier  or  its  duly  authorized  agent,  for  the  purpose 
of  adjusting  mutual  traffic  accounts  in  the  ordinary  course  of 
business  of  such  carriers. 

Any  person,  corporation,  or  association  violating  any  of 
the  provisions  of  the  next  preceding  paragraph  of  this  section 
shall  be  deemed  guilty  of  a  misdemeanor,  and  for  each  offense, 
on  conviction,  shall  pay  to  the  United  States  a  penalty  of  not 
more  than  one  thousand  dollars. 

If  the  owner  of  property  transported  under  this  Act  directly 
or  indirectly  renders  any  service  connected  with  such  trans- 
portation, or  furnishes  any  instrumentality  used  therein,  the 
charge  and  allowance  therefor  shall  be  no  more  than  is  just 
and  reasonable,  and  the  Commission  may,  after  hearing  on  a 
complaint  or  on  its  own  initiative,  determine  what  is  a  reason- 
able charge  as  the  maximum  to  be  paid  by  the  carrier  or  car- 
riers for  the  services  so  rendered  or  for  the  use  of  the  instru- 
mentality so  furnished,  and  fix  the  same  by  appropriate  order, 
which  order  shall  have  the  same  force  and  effect  and  be  enforced 
in  like  manner  as  the  orders  above  provided  for  under  this  section. 

The  foregoing  enumeration  of  powers  shall  not  exclude  any 
power  which  the  Commission  would  otherwise  have  in  the 
making  of  an  order  under  the  provisions  of  this  Act. 

SEC.  16.  [Summary.  Provides  means  whereby  the  Commis- 
sion may  enforce  its  orders.] 

SEC.  17.   [Summary.     Provides  for  rehearings  of  cases.] 

SEC.  18.  [Summary.  Provides  for  salaries  and  expenses 
of  Commission.] 

SEC.  19.  [Summary.  Provides  for  principal  office  of  Com- 
mission, and  for  special  sessions  and  inquiries.] 

SEC.  20.  That  the  Commission  is  hereby  authorized  to  re- 
quire annual  reports  from  all  common  carriers  subject  to  the 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  319 

provisions  of  this  Act,  and  from  the  owners  of  all  railroads 
engaged  in  interstate  commerce  as  defined  in  this  Act ;  to  pre- 
scribe the  manner  in  which  such  reports  shall  be  made,  and  to 
require  from  such  carriers  specific  answers  to  all  questions 
upon  which  the  Commission  may  need  information.  Such 
annual  reports  shall  show  in  detail  the  amount  of  capital  stock 
issued,  the  amounts  paid  therefor,  and  the  manner  of  payment 
for  the  same ;  the  dividends  paid,  the  surplus  fund,  if  any,  and 
the  numbers  of  stockholders;  the  funded  and  floating  debts 
and  the  interest  paid  thereon ;  the  cost  and  value  of  the  car- 
rier's property,  franchises,  and  equipments;  the  number  of 
employees  and  the  salaries  paid  each  class;  the  accidents  to 
passengers,  employees,  and  other  persons,  and  the  causes 
thereof;  the  amounts  expended  for  improvements  each  year, 
how  expended,  and  the  character  of  such  improvements;  the 
earnings  and  receipts  from  each  branch  of  business  and  from 
all  sources;  the  operating  and  other  expenses;  the  balances 
of  profit  and  loss ;  and  a  complete  exhibit  of  the  financial  oper- 
ations of  the  carrier  each  year,  including  an  annual  balance 
sheet.  Such  reports  shall  also  contain  such  information  in 
relation  to  rates  or  regulations  concerning  fares  or  freights, 
or  agreements,  arrangements,  or  contracts  affecting  the  same 
as  the  Commission  may  require;  and  the  Commission  may, 
in  its  discretion,  for  the  purpose  of  enabling  it  the  better  to 
carry  out  the  purposes  of  this  Act,  prescribe  a  period  of  time 
within  which  all  common  carriers  subject  to  the  provisions  of 
this  Act  shall  have,  as  near  as  may  be,  a  uniform  system  of 
accounts,  and  the  manner  in  which  such  accounts  shall  be  kept. 
Said  detailed  reports  shall  contain  all  the  required  statistics 
for  the  period  of  twelve  months  ending  on  the  thirtieth  day  of 
June  in  each  year,  or  on  the  thirty-first  day  of  December  in 
each  year  if  the  Commission  by  order  substitute  that  period 
for  the  year  ending  June  thirtieth,  and  shall  be  made  out  under 
oath  and  filed  with  the  Commission  at  its  office  in  Washington 
within  three  months  after  the  close  of  the  year  for  which  the 
report  is  made,  unless  additional  time  be  granted  in  any  case 
by  the  Commission ;  and  if  any  carrier,  person,  or  corporation 
subject  to  the  provisions  of  this  Act  shall  fail  to  make  and  file 
said  annual  reports  within  the  time  above  specified,  or  within 
the  time  extended  by  the  Commission,  for  making  and  filing 
the  same,  or  shall  fail  to  make  specific  answer  to  any  question 
authorized  by  the  provisions  of  this  section  within  thirty  days 
from  the  time  it  is  lawfully  required  to  do  so,  such  party  shall 


320      AN  INTRODUCTION  TO  THE  STUDY  OF  GOVERNMENT 

forfeit  to  the  United  States  the  sum  of  one  hundred  dollars 
for  each  and  every  day  it  shall  continue  to  be  in  default  with 
respect  thereto.  The  Commission  shall  also  have  authority 
by  general  or  special  orders  to  require  said  carriers,  or  any  of 
them,  to  file  monthly  reports  of  earnings  and  expenses,  and  to 
file  periodical  or  special,  or  both  periodical  and  special,  reports 
concerning  any  matters  about  which  the  Commission  is  au- 
thorized or  required  by  this  or  any  other  law  to  inquire  or  to 
keep  itself  informed  or  which  it  is  required  to  enforce;  and 
such  periodical  or  special  reports  shall  be  under  oath  whenever 
the  Commission  so  requires;  and  if  any  such  carrier  shall  fail 
to  make  and  file  any  such  periodical  or  special  report  within 
the  time  fixed  by  the  Commission,  it  shall  be  subject  to  the 
forfeitures  last  above  provided. 

Said  forfeitures  shall  be  recovered  in  the  manner  provided 
for  the  recovery  of  forfeitures  under  the  provisions  of  this 
Act. 

The  oath  required  by  this  section  may  be  taken  before  any 
person  authorized  to  administer  an  oath  by  the  laws  of  the 
State  in  which  the  same  is  taken. 

The  Commission  may,  in  its  discretion,  prescribe  the  forms 
of  any  and  all  accounts,  records,  and  memoranda  to  be  kept 
by  carriers  subject  to  the  provisions  of  this  Act,  including  the 
accounts,  records,  and  memoranda  of  the  movement  of  traffic 
as  well  as  the  receipts  and  expenditures  of  moneys.  The  Com- 
mission shall  at  all  times  have  access  to  all  accounts,  records, 
and  memoranda  kept  by  carriers  subject  to  this  Act,  and  it 
shall  be  unlawful  for  such  carriers  to  keep  any  other  accounts, 
records,  or  memoranda  than  those  prescribed  or  approved 
by  the  Commission,  and  it  may  employ  special  agents  or  exam- 
iners, who  shall  have  authority  under  the  order  of  the  Com- 
mission to  inspect  and  examine  any  and  all  accounts,  records, 
and  memoranda  kept  by  such  carriers.  This  provision  shall 
apply  to  receivers  of  carriers  and  operating  trustees. 

In  case  of  failure  or  refusal  on  the  part  of  any  such  carrier, 
receiver,  or  trustee  to  keep  such  accounts,  records,  and  memo- 
randa on  books  and  in  the  manner  prescribed  by  the  Commis- 
sion, or  to  submit  such  accounts,  records,  and  memoranda  as 
are  kept  to  the  inspection  of  the  Commission  or  any  of  its 
authorized  agents  or  examiners,  such  carrier,  receiver,  or 
trustee  shall  forfeit  to  the  United  States  the  sum  of  five  hun- 
dred dollars  for  each  such  offense  and  for  each  and  every  day 
of  the  continuance  of  such  offense,  such  forfeitures  to  be  recov- 


OPTIONAL  FUNCTIONS   OF   GOVERNMENT  321 

erable  in  the  same  manner  as  other  forfeitures  provided  for  in 
this  Act. 

Any  person  who  shall  willfully  make  any  false  entry  in  the 
accounts  of  any  book  of  accounts  or  in  any  record  or  memo- 
randa kept  by  a  carrier,  or  who  shall  willfully  destroy,  mutilate, 
alter,  or  by  any  other  means  or  device  falsify  the  record  of 
any  such  account,  record,  or  memoranda,  or  who  shall  will- 
fully neglect  or  fail  to  make  full,  true,  and  correct  entries  in 
such  accounts,  records,  or  memoranda  of  all  facts  and  transac- 
tions appertaining  to  the  carrier's  business,  or  shall  keep  any 
other  accounts,  records,  or  memoranda  than  those  prescribed 
or  approved  by  the  Commission,  shall  be  deemed  guilty  of  a 
misdemeanor,  and  shall  be  subject,  upon  conviction  in  any 
court  of  the  United  States  of  competent  jurisdiction,  to  a  fine 
of  not  less  than  one  thousand  dollars  nor  more  than  five  thou- 
sand dollars  or  imprisonment  for  a  term  not  less  than  one  year 
nor  more  than  three  years,  or  both  such  fine  and  imprisonment : 
Provided,  That  the  Commission  may  in  its  discretion  issue  or- 
ders specifying  such  operating,  accounting,  or  financial  papers, 
records,  books,  blanks,  tickets,  stubs,  or  documents  or  carriers 
which  may,  after  a  reasonable  time,  be  destroyed,  and  pre- 
scribing the  length  of  time  such  books,  papers,  or  documents 
shall  be  preserved. 

Any  examiner  who  divulges  any  fact  or  information  which 
may  come  to  his  knowledge  during  the  course  of  such  examina- 
tion, except  hi  so  far  as  he  may  be  directed  by  the  Commission 
or  by  a  court  or  judge  thereof,  shall  be  subject,  upon  convic- 
tion in  any  court  of  the  United  States  of  competent  jurisdic- 
tion, to  a  fine  of  not  more  than  five  thousand  dollars  or  imprison- 
ment for  a  term  not  exceeding  two  years,  or  both. 

That  the  circuit  and  district  courts  of  the  United  States 
shall  have  jurisdiction,  upon  the  application  of  the  Attorney- 
General  of  the  United  States  at  the  request  of  the  Commission, 
alleging  a  failure  to  comply  with  or  a  violation  of  any  of  the 
provisions  of  said  Act  to  regulate  commerce  or  of  any  Act 
supplementary  thereto  or  amendatory  thereof  by  any  com- 
mon carrier,  to  issue  a  writ  or  writs  of  mandamus  command- 
ing such  common  carrier  to  comply  with  the  provisions  of  said 
Acts,  or  any  of  them. 

And  to  carry  out  and  give  effect  to  the  provisions  of  said 
Acts,  or  any  of  them,  the  Commission  is  hereby  authorized  to 
employ  special  agents  or  examiners  who  shall  have  power  to 
administer  oaths,  examine  witnesses,  and  receive  evidence. 


322      AN  INTRODUCTION  TO  THE   STUDY  OF  GOVERNMENT 

That  any  common  carrier,  railroad,  or  transportation  com- 
pany receiving  property  for  transportation  from  a  point  in  one 
State  to  a  point  in  another  State  shall  issue  a  receipt  or  bill  of 
lading  therefor  and  shall  be  liable  to  the  lawful  holder  thereof 
for  any  loss,  damage,  or  injury  to  such  property  caused  by  it 
or  by  any  common  carrier,  railroad,  or  transportation  company 
to  which  such  property  may  be  delivered  or  over  whose  line 
or  lines  such  property  may  pass,  and  no  contract,  receipt,  rule, 
or  regulation  shall  exempt  such  common  carrier,  railroad,  or 
transportation  company  from  the  liability  hereby  imposed. 
Provided :  That  nothing  in  this  section  shall  deprive  any  holder 
of  such  receipt  or  bill  of  lading  of  any  remedy  or  right  of  action 
which  he  has  under  existing  law. 

That  the  common  carrier,  railroad,  or  transportation  com- 
pany issuing  such  receipt  or  bill  of  lading  shall  be  entitled  to 
recover  from  the  common  carrier,  railroad,  or  transportation 
company  on  whose  line  the  loss,  damage,  or  injury  shall  have 
been  sustained  the  amount  of  such  loss,  damage,  or  injury  as 
it  may  be  required  to  pay  to  the  owners  of  such  property,  as 
may  be  evidenced  by  any  receipt,  judgment,  or  transcript 
thereof. 

SEC.  21.   [Summary.     Provides  for  annual  reports.] 

SEC.  22.  [Summary.  Provides  for  carrying  of  certain  classes 
of  persons  or  property  that  may  be  carried  free  or  at  reduced 
rates.] 

SEC.  23.  [Summary.  Provides  for  the  jurisdiction  of  the 
United  States  courts  to  issue  writs  of  mandamus  commanding 
common  carriers  to  move  traffic,  or  furnish  transportation  for 
an  applicant.) 


APPENDIX 

A.  FRANCE 

CONSTITUTIONAL  LAWS 


CONSTITUTIONAL    LAW    ON   THE    ORGANIZATION    OF   THE    PUBLIC 

POWERS 

(February  25,  1875) 

ARTICLE  1.  The  legislative  power  shall  be  exercised  by 
two  assemblies :  the  Chamber  of  Deputies  and  the  Senate. 

The  Chamber  of  Deputies  shall  be  elected  by  universal 
suffrage,  under  the  condition^  determined  by  the  electoral 
law. 

The  composition,  the  method  of  election,  and  the  powers 
of  the  Senate  shall  be  regulated  by  a  special  law.1 

ART.  2.  The  President  of  the  Republic  ^hall  be  chosen 
by  an  absolute  majority  of  votes  of  the  Senate  and  Chamber 
of  Deputies  united  in  National  Assembly. 

He  shall  be  elected  for  seven  years.     He  is  re-eligible. 

ART.  3.  The  President  of  the  Republic  shall  have  the 
initiative  of  laws,  concurrently  with  the  members  of  the  two 
chambers.  He  shall  promulgate  the  laws  when  they  have  been 
voted  by  the  two  chambers;  he  shall  look  after  and  secure 
their  execution. 

He  shall  have  the  right  of  pardon;  amnesty  may  only  be 
•granted  by  law. 

He  shall  dispose  of  the  armed  force. 

He  shall  appoint  to  all  civil  and  military  positions. 

He  shall  preside  over  state  functions;  envoys  and  ambas- 
sadors of  foreign  powers  shall  be  accredited  to  him. 

1  See  constitutional  law  of  February  24,  1875,  and  law  of  December  9,  1884, 
pp.  325,  331. 

323 


324  APPENDIX 

Every  act  of  the  President  of  the  Republic  shall  be  counter- 
signed by  a  minister. 

ART.  4.  As  vacancies  occur  on  and  after  the  promulga- 
tion of  the  present  law,  the  President  of  the  Republic  shall 
appoint,  in  the  Council  of  Ministers,  the  councilors  of  state 
in  regular  service. 

The  councilors  of  state  thus  chosen  may  be  dismissed  only 
by  decree  rendered  in  the  Council  of  Ministers. 

The  councilors  of  state  chosen  by  virtue  of  the  law  of  May 
24,  1872,  shall  not,  before  the  expiration  of  their  powers,  be 
dismissed  except  in  the  manner  provided  by  that  law.  After 
the  dissolution  of  the  National  Assembly,  they  may  be  dis- 
missed only  by  resolution  of  the  Senate.1 

ART.  5.  The  President  of  the  Republic  may,  with  the 
advice  of  the  Senate,  dissolve  the  Chamber  of  Deputies  before 
the  legal  expiration  of  its  term. 

In  that  case  the  electoral  colleges  shall  be  summoned  for 
new  elections  within  the  space  of  two  months,  and  the  Chamber 
within  the  ten  days  following  the  close  of  the  elections.2 

ART.  6.  The  ministers  shall  be  collectively  responsible 
to  the  chambers  for  the  general  policy  of  the  government,  and 
individually  for  their  personal  acts. 

The  President  of  the  Republic  shall  be  responsible  only  in 
case  of  high  treason.3 

ART.  7.  In  case  of  vacancy  by  death  or  for  any  other 
reason,  the  two  chambers  assembled  together  shall  proceed  at 
once  to  the  election  of  a  new  President. 

In  the  meantime  the  Council  of  Ministers  shall  be  vested 
with  the  executive  power.4 

ART.  8.  The  chambers  shall  have  the  right  by  separate 
resolutions,  taken  in  each  by  an  absolute  majority  of  votes, 
either  upon  their  own  initiative  or  upon  the  request  of  the 
President  of  the  Republic,  to  declare  a  revision  of  the  consti- 
tutional laws  necessary. 

After  each  of  the  two  chambers  shall  have  come  to  this 
decision,  they  shall  meet  together  in  National  Assembly  to 
proceed  with  the  revision. 

1  By  the  law  of  May  24,  1872,  councilors  of  state  were  elected  by  the  National 
Assembly  for  a  term  of  nine  years.     This  clause  therefore  ceased  to  have  any 
application  after  1881. 

2  As  amended  by  Art.  1  of  the  constitutional  law  of  August  14,  1884.     See 
p.  329. 

8  See  Art.  12  of  the  constitutional  law  of  July  16,  1875,  p.  329. 
4  See  Art.  3  of  the  constitutional  law  of  July  16,  1875,  p.  327. 


CONSTITUTIONAL  LAWS  OF  FRANCE  325 

The  acts  affecting  revision  of  the  constitutional  laws,  in 
whole  or  in  part,  shall  be  passed  by  an  absolute  majority  of 
the  members  composing  the  National  Assembly. 

During  the  continuance,  however,  of  the  powers  conferred 
by  the  law  of  November  20, 1873,  upon  Marshal  de  MacMahon, 
this  revision  shall  take  place  only  upon  the  initiative  of  the 
President  of  the  Republic.  [The  republican  form  of  govern- 
ment shall  not  be  made  the  subject  of  a  proposed  revision. 
Members  of  families  that  have  reigned  in  France  are  ineligible 
to  the  presidency  of  the  Republic.1] 

ART.  9.  The  seat  of  the  executive  power  and  of  the  two 
chambers  is  at  Versailles.2 


CONSTITUTIONAL  LAW  ON  THE  ORGANIZATION  OF  THE  SENATE  3 
(February  24,  1875) 

ARTICLE'!.  The  Senate  shall  consist  of  three  hundred 
members :  two  hundred  and  twenty-five  elected  by  the  depart- 
ments and  colonies,  and  seventy-five  elected  by  the  National 
Assembly. 

ART.  2.  The  departments  of  the  Seine  and  of  the  Nord 
shall  each  elect  five  senators. 

The  following  departments  shall  elect  four  senators  each : 
Seine-Infe*rieure,  Pas-de-Calais,  Gironde,  Rh6ne,  Finist£re, 
C6tes-du-Nord. 

The  following  departments  shall  elect  three  senators  each  : 
Loire-Infe"rieure,  Sa6ne-et-Loire,  Ille-et-Vilaine,  Seine-et-Oise, 
Is&re,  Puy-de-Dome,  Spmme,  Bouches-du-Rh6ne,  Aisne,  Loire, 
Manche,  Maine-et-Loire,  Morbihan,  Dordogne,  Haute-Ga- 
ronne,  Charente-Infe"rieure,  Calvados,  Sarthe,  He*rault,  Basses- 
Pyre*ne*es,  Gard,  Aveyron,  Vendee,  Orne,  Oise,  Vosges,  Allier. 

All  the  other  departments  shall  elect  two  senators  each. 

The  following  shall  elect  one  senator  each :  the  territory 
of  Belfort,  the  three  departments  of  Algeria,  the  four  colonies 
of  Martinique,  Guadeloupe,  Reunion,  and  the  French  Indies. 

ART.  3.    No  one  shall  be  a  senator  unless  he  is  a  French 

1  As  amended  by  Art.  2  of  the  constitutional  law  of  August  14,  1884. 

2  Repealed  by  constitutional  law  of  June  21,  1879.     See  law  of  July  22,  1879, 
p.  330. 

*  Arts.  1  to  7  of  this  law  were  deprived  of  their  constitutional  character  by 
the  constitutional  law  of  August  14,  1884,  and  were  repealed  by  law  of  December 
9,  1884.  See  pp.  329,  331. 


326  APPENDIX 

citizen  at  least  forty  years  of  age,  and  in  the  enjoyment  of  civil 
and  political  rights. 

^ART.  4.  The  senators  of  the  departments  and  of  the  colo- 
nies shall  be  elected  by  an  absolute  majority  and  by  scrutin 
de  liste,  by  a  college  meeting  at  the  capital  of  the  department 
or  colony  and  composed : 

(1)  of  the  deputies ; 

(2)  of  the  general  councilors ; 

(3)  of  the  arrondissement  councilors ; 

(4)  of  delegates  elected,   one  by  each  municipal   council, 
from  among  the  voters  of  the  commune. 

In  the  French  Indies  the  members  of  the  colonial  council 
or  of  the  local  councils  are  substituted  for  the  general  coun- 
cilors, arrondissement  councilors,  and  delegates  from  the  muni- 
cipal councils. 

They  shall  vote  at  the  seat  of  government  of  each  district. 

ART.  5.  The  senators  chosen  by  the  Assembly  shall  be 
elected  by  scrutin  de  liste  and  by  an  absolute  majority  of  votes. 

ART.  6.  The  senators  of  the  departments  and  of  the  colo- 
nies shall  be  elected  for  nine  years  and  renewable  by  thirds 
every  three  years. 

At  the  beginning  of  the  first  session  the  departments  shall 
be  divided  into  three  series  containing  each  an  equal  number 
of  senators.  It  shall  be  determined  by  lot  which  series  shall 
be  renewed  at  the  expiration  of  the  first  and  second  triennial 
periods. 

ART.  7.  The  senators  elected  by  the  Assembly  are  irre- 
movable. 

Vacancies  by  death,  by  resignation,  or  for  any  other  cause, 
shall,  within  the  space  of  two  months,  be  filled  by  the  Senate 
itself. 

ART.  8.  The  Senate  shall  have,  concurrently  with  the 
Chamber  of  Deputies,  the  power  to  initiate  and  to  pass  laws. 
Money  bills,  however,  shall  first  be  introduced  in  and  passed  by 
the  Chamber  of  Deputies. 

^  ART.  9.  The  Senate  may  be  constituted  a  Court  of  Jus- 
tice to  try  either  the  President  of  the  Republic  or  the  ministers, 
and  to  take  cognizance  of  attacks  made  upon  the  safety  of 
the  state. 

ART.  10.  Elections  to  the  Senate  shall  take  place  one 
month  before  the  time  fixed  by  the  National  Assembly  for  its 
own  dissolution.  The  Senate  shall  organize  and  enter  upon  its 
duties  the  same  day  that  the  National  Assembly  is  dissolved. 


CONSTITUTIONAL  LAWS  OF  FRANCE  327 

ART.  11.    The  present  law  shall  be  promulgated  only  after 
the  passage  of  the  law  on  the  public  powers. 


CONSTITUTIONAL  LAW  ON   THE   RELATIONS  OF  THE   PUBLIC 

POWERS 

(July  16,  1875) 

ARTICLE  1.  The  Senate  and  the  Chamber  of  Deputies 
shall  assemble  each  year  on  the  second  Tuesday  of  January, 
unless  convened  earlier  by  the  President  of  the  Republic. 

The  two  chambers  shall  continue  in  session  at  least  five 
months  each  year.  The  sessions  of  the  two  chambers  shall 
begin  and  end  at  the  same  time. 

On  the  Sunday  following  the  opening  of  the  session,  public 
prayers  shall  be  addressed  to  God  in  the  churches  and  temples, 
to  invoke  his  aid  in  the  labors  of  the  chambers.1 

ART.  2.  The  President  of  the  Republic  pronounces  the  clos- 
ing of  the  session.  He  may  convene  the  chambers  in  extraor- 
dinary session.  He  shall  convene  them  if,  during  the  recess,  an 
absolute  majority  of  the  members  of  each  chamber  request  it. 

The  President  may  adjourn  the  chambers.  The  adjourn- 
ment, however,  shall  not  exceed  one  month,  nor  take  place 
more  than  twice  in  the  same  session. 

ART.  3.  One  month  at  least  before  the  legal  expiration 
of  the  powers  of  the  President  of  the  Republic,  the  chambers 
shall  be  called  together  in  National  Assembly  to  proceed  to 
the  election  of  a  new  President. 

In  default  of  a  summons,  this  meeting  shall  take  place,  as 
of  right,  the  fifteenth  day  before  the  expiration  of  the  term 
of  the  President. 

In  case  of  the  death  or  resignation  of  the  President  of  the 
Republic,  the  two  chambers  shall  assemble  immediately,  as 
of  right. 

In  case  the  Chamber  of  Deputies,  in  consequence  of  Art.  5 
of  the  law  of  February  25, 1875,  is  dissolved  at  the  time  when 
the  presidency  of  the  Republic  becomes  vacant,  the  electoral 
colleges  shall  be  convened  at  once,  and  the  Senate  shall  as- 
semble as  of  right. 

ART.  4.  Every  meeting  of  either  of  the  two  chambers 
which  shall  be  held  at  a  time  when  the  other  is  not  in  session  is 

1  This  clause  was  repealed  by  the  constitutional  law  of  August  14,  1884. 


328  APPENDIX 

illegal  and  void,  except  in  the  case  provided  for  in  the  preced- 
ing article,  and  that  when  the  Senate  meets  as  a  court  of  jus- 
tice ;  in  the  latter  case,  judicial  duties  alone  shall  be  performed. 

ART.  5.  The  sittings  of  the  Senate  and  of  the  Chamber  of 
Deputies  shall  be  public. 

Nevertheless  either  chamber  may  meet  in  secret  session, 
upon  the  request  of  a  fixed  number  of  its  members,  determined 
by  the  rules. 

It  shall  then  decide  by  absolute  majority  whether  the  sitting 
shall  be  resumed  in  public  upon  the  same  subject. 

ART.  6.  The  President  of  the  Republic  communicates 
with  the  chambers  by  messages,  which  shall  be  read  from  the 
tribune  by  a  minister. 

The  ministers  shall  have  entrance  to  both  chambers,  and 
shall  be  heard  when  they  request  it.  They  may  be  assisted, 
for  the  discussion  of  a  specific  bill,  by  commissioners  named 
by  decree  of  the  President  of  the  Republic. 

ART.  7.  The  President  of  the  Republic  shall  promulgate 
the  laws  within  the  month  following  the  transmission  to  the 
government  of  the  law  finally  passed.  He  shall  promulgate, 
within  three  days,  laws  the  promulgation  of  which  shall  have 
been  declared  urgent  by  an  express  vote  of  each  chamber. 

Within  the  time  fixed  for  promulgation  the  President  of  the 
Republic  may,  by  a  message  with  reasons  assigned,  request  of 
the  two  chambers  a  new  discussion,  which  cannot  be  refused. 

ART.  8.  The  President  of  the  Republic  shall  negotiate  and 
ratify  treaties.  He  shall  give  information  regarding  them  to  the 
chambers  as  soon  as  the  interests  and  safety  of  the  state  permit. 

Treaties  of  peace  and  of  commerce,  treaties  which  involve 
the  finances  of  the  state,  those  relating  to  the  person  and 
property  of  French  citizens  in  foreign  countries,  shall  be  ratified 
only  after  having  been  voted  by  the  two  chambers. 

No  cession,  exchange,  or  annexation  of  territory  shall  take 
place  except  by  virtue  of  a  law. 

ART.  9.  The  President  of  the  Republic  shall  not  declare 
war  without  the  previous  consent  of  the  two  chambers. 

ART.  10.  Each  chamber  shall  be  the  judge  of  the  eligi- 
bility of  its  members,  and  of  the  regularity  of  their  election; 
it  alone  may  receive  their  resignation. 

ART.  11.    The  bureau l  of  each  chamber  shall  be  elected 

1  The  bureau  of  the  Senate  consists  of  a  president,  four  vice-presidents, 
eight  secretaries,  and  three  questors;  the  bureau  of  the  Chamber  of  Deputies 
has  the  same  composition. 


CONSTITUTIONAL  LAWS   OF  FRANCE  329 

each  year  for  the  entire  session,  and  for  every  extraordinary 
session  which  may  be  held  before  the  regular  session  of  the 
following  year. 

When  the  two  chambers  meet  together  as  a  National  As- 
sembly, their  bureau  shall  be  composed  of  the  president,  vice- 
presidents,  and  secretaries  of  the  Senate. 

ART.  12.  The  President  of  the  Republic  may  be  impeached 
by  the  Chamber  of  Deputies  only,  and  may  be  tried  only  by 
the  Senate. 

The  ministers  may  be  impeached  by  the  Chamber  of  Deputies 
for  offenses  committed  in  the  performance  of  their  duties.  In 
this  case  they  shall  be  tried  by  the  Senate. 

The  Senate  may  be  constituted  into  a  court  of  justice,  by 
a  decree  of  the  President  of  the  Republic,  issued  in  the  Council 
of  Ministers,  to  try  all  persons  accused  of  attempts  upon  the 
safety  of  the  state. 

If  proceedings  should  have  been  begun  in  the  regular  courts, 
the  decree  convening  the  Senate  may  be  issued  at  any  time 
before  the  granting  of  a  discharge. 

A  law  shall  determine  the  method  of  procedure  for  the  accu- 
sation, trial,  and  judgment. 

ART.  13.  No  member  of  either  chamber  shall  be  prose- 
cuted or  held  responsible  on  account  of  any  opinions  expressed 
or  votes  cast  by  him  in  the  performance  of  his  duties. 

ART.  14.  No  member  of  either  chamber  shall,  during 
the  session,  be  prosecuted  or  arrested  for  any  offense  or  mis- 
demeanor, except  upon  the  authority  of  the  chamber  of  which 
he  is  a  member,  unless  he  be  taken  in  the  very  act. 

The  detention  or  prosecution  of  a  member  of  either  cham- 
ber shall  be  suspended  for  the  session,  and  for  the  entire  term 
of  the  chamber,  if  the  chamber  requires  it. 


CONSTITUTIONAL  LAW  PARTIALLY  REVISING  THE  CONSTITUTIONAL 

LAWS1 

(August  14,  1884) 

ARTICLE  1.  Paragraph  2  of  Art.  5  of  the  constitutional 
law  of  February  25,  1875,  on  the  Organization  of  the  Public 
Powers,  is  amended  as  follows : 

1  The  amendments  to  the  constitutional  laws  have  also  been  inserted  in  their 
proper  places. 


330  APPENDIX 

"In  that  case  the  electoral  colleges  shall  meet  for  new  elec- 
tions within  two  months  and  the  Chamber  within  the  ten  days 
following  the  close  of  the  elections." 

ART.  2.  To  paragraph  3  of  Art.  8  of  the  same  law  of  Febru- 
ary 25,  1875,  is  added  the  following : 

"The  republican  form  of  government  shall  not  be  made 
the  subject  of  a  proposed  revision.  / 

"Members  of  families  that  have  reigned  in  France  are 
ineligible  to  the  presidency  of  the  Republic." 

ART.  3.  Arts.  1  to  7  of  the  constitutional  law  of  February 
24,  1875,  on  the  Organization  of  the  Senate,  shall  no  longer 
have  a  constitutional  character.1 

ART.  4.  Paragraph  3  of  Art.  1  of  the  constitutional  law 
of  July  16,  1875,  on  the  Relation  of  the  Public  Powers,  is  re- 
pealed. 


LAW   RELATING   TO   THE   SEAT   OF   THE   EXECUTIVE    POWER  AND 
OF   THE   TWO   CHAMBERS   AT   PARIS 

(July  22,  1879) 

ARTICLE  1.  The  seat  of  the  executive  power  and  of  the 
two  chambers  is  at  Paris. 

ART.  2.  The  palace  of  the  Luxemburg  and  the  Palais- 
Bourbon  are  assigned,  the  first  to  the  use  of  the  Senate,  and  the 
second  to  that  of  the  Chamber  of  Deputies. 

Nevertheless  each  of  the  chambers  is  authorized  to  choose, 
in  the  city  of  Paris,  the  palace  which  it  wishes  to  occupy. 

ART.  3.  The  varidus  parts  of  the  palace  of  Versailles 
now  occupied  by  the  Senate  and  the  Chamber  of  Deputies 
shall  preserve  their  arrangements. 

Whenever,  according  to  Arts.  7  and  8  of  the  law  of  Febru- 
ary 25,  1875,  on  the  organization  of  the  public  powers,  a  meet- 
ing of  the  National  Assembly  takes  place,  it  shall  sit  at  Ver- 
sailles, in  the  present  hall  of  the  Chamber  of  Deputies. 

Whenever,  according  to  Art.  9  of  the  law  of  February  24, 
1875,  on  the  organization  of  the  Senate,  and  Art.  12  of  the 
constitutional  law  of  July  16,  1875,  on  the  relations  of  the 
public  powers,  the  Senate  shall  be  called  upon  to  constitute 
itself  a  court  of  justice,  it  shall  indicate  the  town  and  place 
where  it  proposes  to  sit. 

1  These  articles  were  repealed  by  way  of  ordinary  legislation,  on  December 
9,  1884 ;  see  p.  331. 


CONSTITUTIONAL  LAWS   OF  FRANCE  331 

ART.  4.  The  Senate  and  Chamber  of  Deputies  shall  sit 
at  Paris  on  and  after  November  3  next. 

ART.  5.  The  presidents  of  the  Senate  and  of  the  Chamber 
of  Deputies  are  charged  with  the  duty  of  securing  the  external 
and  internal  safety  of  the  chambers  over  which  they  preside. 

For  this  purpose  they  shall  have  the  right  to  call  upon  the 
armed  forces  and  upon  authorities  whose  assistance  they  con- 
sider necessary. 

Such  requisitions  may  be  addressed  directly  to  all  officers, 
commanders,  or  officials,  who  are  bound  to  obey  immediately, 
under  the  penalties  established  by  the  laws. 

The  presidents  of  the  Senate  and  of  the  Chamber  of  Deputies 
may  delegate  to  the  questors  or  to  one  of  them  their  right  of 
demanding  aid. 

ART.  6.  Petitions  to  either  of  the  chambers  shall  be  made 
and  presented  only  in  writing.  It  is  forbidden  to  present  them 
in  person  or  at  the  bar. 

ART.  7.  Every  violation  of  the  preceding  article,  every 
provocation,  by  public  speeches,  by  writings,  or  by  printed 
matter,  posted  or  distributed,  to  a  crowd  upon  the  public  ways, 
having  for  its  object  the  discussion,  drawing  up,  or  carrying 
to  the  chambers  or  to  either  of  them,  of  petitions,  declarations, 
or  addresses,  shall  be  punished  by  the  penalties  enumerated 
in  paragraph  1  of  Art.  5  of  the  law  of  June  7,  1848,  whether 
or  not  any  results  follow  from  such  actions. 

ART.  8.  The  preceding  provisions  do  not  diminish  the 
force  of  the  law  of  June  7,  1848,  on  riotous  assemblies. 

ART.  9.  Art.  463  of  the  Penal  Code  is  applicable  to  the 
offenses  mentioned  in  the  present  law. 

6 

LAW    AMENDING    THE    ORGANIC    LAWS    ON    THE    ORGANIZATION 
OF   THE   SENATE   AND   THE   ELECTION   OF   SENATORS 

(December  9,  1884) 

ARTICLE  1.  The  Senate  shall  be  composed  of  three  hun- 
dred members,  elected  by  the  departments  and  the  colonies. 

The  present  members,  without  any  distinction  between 
senators  elected  by  the  National  Assembly  or  by  the  Senate 
and  those  elected  by  the  departments  and  colonies,  shall  retain 
their  offices  during  the  time  for  which  they  have  been  chosen. 

ART.  2.    The  department  of  the  Seine  shall  elect  ten  senators. 


332  APPENDIX 

The  department  of  the  Nord  shall  elect  eight  senators. 

The  following  departments  shall  elect  five  senators  each :  C6tes- 
du-Nord,  Finistere,  Gironde,  Ille-et-Vilaine,  Loire,  Loire-Infe'ri- 
eure,  Pas-de-Calais,  Rhone,  Saone-et-Loire,  Seine-Inferieure. 

The  following  departments  shall  elect  four  senators  each : 
Aisne,  Bouches-de-Rh6ne,  Charente-Inferieure,  Dordogne, 
Haute-Garonne,  Isere,  Maine-et-Loire,  Manche,  Morbihan, 
Puy-de-D6me,  Seine-et-Oise,  Somme. 

The  following  departments  shall  elect  three  senators  each : 
Ain,  Allier,  Ard£che,  Ardennes,  Aube,  Aude,  Aveyron, 
Calvados,  Charente,  Cher,  Corr£ze,  Corse,  Cote-d'Or,  Creuse, 
Doubs,  Drome,  Eure,  Eure-et-Loir,  Gard,  Gers,  Herault, 
Indre,  Indre-et-Loire,  Jura,  Landes,  Loir-et-Cher,  Haute- 
Loire,  Loiret,  Lot,  Lot-et-Garonne,  Marne,  Haute-Marne, 
Mayenne,  Meurthe-et-Moselle,  Meuse,  Nieyre,  Oise,  Orne, 
Basses-Pyrenees,  Haute-Sa6ne,  Sarthe,  Savoie,  Haute-Savoie, 
Seine-et-Marne,  Deux-Sevres,  Tern,  Var,  Vendee,  Vienne, 
Haute- Vienne,  Vosges,  Yonne. 

The  following  departments  shall  elect  two  senators  each : 
Basses-Alpes,  Hautes-Alpes,  Alpes-Maritimes,  Ariege,  Cantal, 
Lozere,  Hautes-Pyrenees,  Pyr6n4es-Orientales,  Tarn-et- 
Garonne,  Vaucluse. 

The  following  shall  elect  one  senator  each :  The  territory 
of  Belfort,  the  three  departments  of  Algeria,  the  four  colonies : 
Martinique,  Guadeloupe,  Reunion,  and  French  Indies. 

ART.  3.  In  the  departments  where  the  number  of  senators 
is  increased  by  the  present  law,  the  increase  shall  take  effect 
as  vacancies  occur  among  the  life  senators. 

For  this  purpose,  within  a  week  after  the  vacancy  occurs, 
it  shall  be  determined  by  lot  in  public  session  what  depart- 
ment shall  be  called  upon  to  elect  a  senator. 

This  election  shall  take  place  within  three  months  of  the 
determination  by  lot.  However,  if  the  vacancy  occurs  within 
six  months  preceding  the  triennial  election,  the  vacancy  shall 
not  be  filled  until  that  election. 

The  term  of  office  in  case  of  a  special  election  shall  expire 
at  the  same  time  as  that  of  the  other  senators  belonging  to  the 
same  department. 

ART.  4.  No  one  shall  be  a  senator  unless  he  is  a  French 
citizen  at  least  forty  years  of  age  and  in  the  enjoyment  of 
civil  and  political  rights.1 

1  By  law  of  July  20,  1895,  no  one  may  become  a  member  of  Parliament  unless 
he  has  complied  with  the  law  regarding  military  service. 


CONSTITUTIONAL  LAWS  OF  FKANCB  333 

Members  of  families  that  have  reigned  in  France  are  ineligi- 
ble to  the  Senate. 

ART.  5.  The  soldiers  of  the  land  and  naval  forces  shall  not 
be  elected  Senators. 

There  are  excepted  from  this  provision : 

(1)  The  marshals  of  France  and  admirals. 

(2)  The   general  officers  maintained  without  limit  of  age 
in  the  first  section  of  the  list  of  the  general  staff  and  not  pro- 
vided with  a  command. 

(3)  The  general  officers  placed  in  the  second  section  of  the 
list  of  the  general  staff. 

(4)  Members  of  the  land  and  naval  forces  who  belong  either 
to  the  reserve  of  the  active  army  or  to  the  territorial  army. 

ART.  6.  Senators  shall  be  elected  by  scrutin  de  liste,  by 
a  college  meeting  at  the  capital  of  the  department  or  of  the 
colony,  and  composed: 

(1)  of  the  deputies ; 

(2)  of  the  general  councilors ; 

(3)  of  the  councilors  of  the  arrondissement ; 

(4)  of  delegates  elected  from  among  the  voters  of  the  com- 
mune, by  each  municipal  council. 

Councils  composed  of  ten  members  shall  elect  one  delegate. 

Councils  composed  of  twelve  members  shall  elect  two  dele- 
gates. 

Councils  composed  of  sixteen  members  shall  elect  three 
delegates. 

Councils  composed  of  twenty-one  members  shall  elect  six 
delegates. 

Councils  composed  of  twenty-three  members  shall  elect 
nine  delegates. 

Councils  composed  of  twenty-seven  members  shall  elect 
twelve  delegates. 

Councils  composed  of  thirty  members  shall  elect  fifteen 
delegates. 

Councils  composed  of  thirty-two  members  shall  elect  eighteen 
delegates. 

Councils  composed  of  thirty-four  members  shall  elect  twenty- 
one  delegates. 

Councils  composed  of  thirty-six  members  or  more  shall 
elect  twenty-four  delegates. 

The  Municipal  Council  of  Paris  shall  elect  thirty  delegates. 

In  the  French  Indies  the  members  of  the  local  councils 
shall  take  the  place  of  councilors  of  the  arrondissement.  The 


334  APPENDIX 

municipal  council  of  Pondichery  shall  elect  five  delegates. 
The  municipal  council  of  Karikal  shall  elect  three  delegates. 
All  of  the  other  communes  shall  elect  two  delegates  each. 

The  balloting  takes  place  at  the  seat  of  government  of  each 
district. 

ART.  7.  Members  of  the  Senate  shall  be  elected  for  nine 
years. 

The  Senate  shall  be  renewed  every  three  years  according 
to  the  order  of  the  present  series  of  departments  and  colonies. 

ART.  8.  Arts.  2  (paragraphs  1  and  2),  3,  4,  5,  8,  14,  16, 
19,  and  23  of  the  organic  law  of  August  2,  1875,  on  the  elec- 
tions of  senators,  are  amended  as  follows : 

"Art.  2  (paragraphs  1  and  2).  In  each  municipal  council 
the  election  of  delegates  shall  take  place  without  debate  and  by 
secret  ballot,  by  scrutin  de  liste,  and  by  an  absolute  majority 
of  votes  cast.  After  two  ballots  a  plurality  shall  be  sufficient, 
and  in  case  of  an  equality  of  votes  the  oldest  is  elected. 

"The  procedure  and  method  shall  be  the  same  for  the  elec- 
tion of  alternates. 

"Councils  having  one,  two,  or  three  delegates  to  choose 
shall  elect  one  alternate. 

"Those  choosing  six  or  nine  delegates  shall  elect  two  alter- 
nates. 

"Those  choosing  twelve  or  fifteen  delegates  shall  elect  three 
alternates. 

"Those  choosing  eighteen  or  twenty-one  delegates  shall 
elect  four  alternates. 

"Those  choosing  twenty-four  delegates  shall  elect  five 
alternates. 

"The  municipal  council  of  Paris  shall  elect  eight  alternates. 

"The  alternates  shall  take  the  place  of  delegates  in  case  of 
refusal  or  inability  to  serve,  in  the  order  determined  by  the 
number  of  votes  received  by  each  of  them. 

"Art.  3.  In  communes  where  the  duties  of  the  municipal 
council  are  performed  by  a  special  delegation  organized  by 
virtue  of  Art.  44  of  the  law  of  April  5,  1884,  the  senatorial 
delegates  and  alternates  shall  be  chosen  by  the  former  council. 

"Art.  4.  If  the  delegates  were  not  present  at  the  election, 
notice  shall  be  given  them  by  the  mayor  within  twenty-four 
hours.  They  shall  within  five  days  notify  the  prefect  of  their 
acceptance.  In  case  of  declination  or  silence  they  shall  be 
replaced  by  the  alternates,  who  shall  then  be  placed  upon  the 
list  as  the  delegates  of  the  commune. 


CONSTITUTIONAL  LAWS  OF  PRANCE  335 

"Art.  5.  The  official  report  of  the  election  of  delegates 
and  alternates  shall  be  transmitted  at  once  to  the  prefect.  It 
shall  indicate  the  acceptance  or  declination  of  the  delegates 
and  alternates,  as  well  as  the  protests  made  by  one  or  more 
members  of  the  municipal  council  against  the  legality  of  the 
election.  A  copy  of  this  official  report  shall  be  posted  on  the 
door  of  the  town  hall. 

"Art.  8.  Protests  concerning  the  election  of  delegates  or 
of  alternates  shall  be  decided,  subject  to  an  appeal  to  the 
Council  of  State,  by  the  council  of  the  prefecture,  and,  in  the 
colonies,  by  the  privy  council. 

"Delegates  whose  elections  may  be  set  aside  because  they 
do  not  satisfy  the  conditions  demanded  by  law,  or  because  of 
informality,  shall  be  replaced  by  the  alternates. 

"In  case  the  election  of  a  delegate  and  of  an  alternate  is 
annulled,  or  in  the  case  of  the  refusal  or  death  of  both  of  them 
after  their  acceptance,  new  elections  shall  be  held  by  the 
municipal  council  on  a  day  fixed  by  an  order  of  the  prefect. 

"Art.  14,  The  first  ballot  shall  begin  at  eight  o'clock  in 
the  morning  and  close  at  noon.  The  second  shall  begin  at 
two  o'clock  and  close  at  five  o'clock.  The  third  shall  begin 
at  seven  o'clock  and  close  at  ten  o'clock.  The  results  of  the 
balloting  shall  be  canvassed  by  the  bureau  and  announced 
immediately  by  the  president  of  the  electoral  college. 

"Art.  16.  Political  meetings  for  the  nomination  of  sen- 
ators may  be  held  from  the  date  of  the  promulgation  of  the 
decree  summoning  the  electors  up  to  the  day  of  the  election, 
inclusive. 

"The  declaration  prescribed  by  Article  2  of  the  law  of  June 
30,  1881,  shall  be  made  by  two  voters,  at  least.1 

"The  forms  and  regulations  of  this  article,  as  well  as  those 
of  Article  3,  shall  be  observed. 

"The  members  of  Parliament  elected  or  electors  in  the 
department,  the  senatorial  electors,  delegates  and  alternates, 
and  the  candidates,  or  their  representatives,  may  alone  be 
present  at  these  meetings. 

"The  municipal  authorities  shall  see  to  it  that  no  other  per- 
son is  admitted. 

"Delegates  and  alternates  shall  present  as  a  means  of  iden- 
tification a  certificate  from  the  mayor  of  the  commune ;  can- 
didates or  their  representatives,  a  certificate  from  the  official 

1  The  law  of  June  30,  1881,  relates  to  notice  which  must  be  given  to  the  au- 
thorities before  any  public  meeting  can  be  held. 


336  APPENDIX 

who  shall  have  received  the  declaration  mentioned  in  para- 
graph 2. 

"Art.  19.  Every  attempt  at  corruption  or  constraint  by 
the  employment  of  means  enumerated  in  Arts.  177  and  follow- 
ing of  the  Penal  Code,  to  influence  the  vote  of  an  elector  or 
to  keep  him  from  voting,  shall  be  punished  by  imprisonment 
of  from  three  months  to  two  years,  and  by  a  fine  of  from  fifty 
francs  to  five  hundred  francs,  or  by  either  of  these  penalties. 

"Art.  463  of  the  Penal  Code  is  applicable  to  the  penalties 
provided  by  the  present  article. 

"Art.  23.  Vacancies  caused  by  the  death  or  resignation  of 
senators  shall  be  filled  within  three  months;  however,  if  the 
vacancy  occurs  within  six  months  preceding  the  triennial  elec- 
tions, it  shall  not  be  filled  until  those  elections." 

ART.  9.     There  are  repealed : 

(1)  Arts.  1  to  7  of  the  law  of  February  24,  1875,  on  the 
organization  of  the  Senate. 

(2)  Arts.  24  and  25  of  the  law  of  August  2,  1875,  on  the 
elections  of  senators. 


B.  GERMANY 
THE  CONSTITUTION  OF  THE  GERMAN  EMPIRE 

(April  16,  1871) 

His  Majesty  the  King  of  Prussia,  in  the  name  of  the  North 
German  Confederation,  His  Majesty  the  King  of  Bavaria,  His 
Majesty  the  King  of  Wurttemberg,  His  Royal  Highness  the 
Grand  Duke  of  Baden,  and  His  Royal  Highness  the  Grand 
Duke  of  Hesse  and  Rhenish  Hesse  for  those  parts  of  the  Grand 
Duchy  of  Hesse  lying  south  of  the  Main,  conclude  an  eternal 
alliance  for  the  protection  of  the  territory  of  the  Confedera- 
tion, and  of  the  rights  of  the  same  as  well  as  for  the  promotion 
of  the  welfyare  of  the  German  people.  This  Confederation 
shall  bear  the  name  of  the  German  Empire,  and  shall  have  the 
following  Constitution : 

I.  Federal  Territory 

ARTICLE  1.  The  territory  of  the  Confederation  shall  con- 
sist of  the  states  of  Prussia  with  Lauenburg,  Bavaria,  Saxony, 
Wurttemberg,  Baden,  Hesse,  Mecklenburg-Schwerin,  Saxe- 
Weimar,  Mecklenburg-Strelitz,  Oldenburg,  Brunswick,  Saxe- 
Meiningen,  Saxe-Altenburg,  Saxe-Coburg-Gotha,  Anhalt, 
Schwarzburg-Rudolstadt,  Schwarzburg-Sondershausen,  Wai- 
deck,  Reuss  elder  line,  Reuss  younger  line,  Schaumburg-Lippe, 
Lippe,  Ltibeck,  Bremen,  and  Hamburg. 

II.  Legislation'  of  the  Empire 

ART.  2.  Within  this  federal  territory  the  Empire  shall 
exercise  the  right  of  legislation  in  accordance  with  the  pro- 
visions of  this  constitution ;  and  the  laws  of  the  Empire  shall 
take  precedence  of  the  laws  of  the  states.  The  laws  of  the 
Empire  shall  receive  their  binding  force  by  imperial* promulga- 
tion, through  the  medium  of  an  imperial  gazette.  If  no  other 
time  is  designated  for  the  published  law  to  take  effect,  it  shall 
become  effective  on  the  fourteenth  day  after  its  publication 
in  the  Imperial  Gazette  at  Berlin. 
z  337 


338  APPENDIX 

ART.  3.  There  shall  be  a  common  citizenship  for  all  Ger- 
many, and  the  members  (subjects  or  citizens)  of  each  state 
of  the  Confederation  shall  be  treated  in  every  other  state  as 
natives,  and  shall  accordingly  have  the  right  of  becoming  per- 
manent residents;  of  carrying  on  business;  of  filling  public 
offices ;  of  acquiring  real  estate ;  of  obtaining  citizenship,  and 
of  enjoying  all  other  civil  rights  under  the  same  conditions 
as  those  born  in  the  state,  and  shall  also  have  the  same  treat- 
ment as  regards  judicial  remedies  and  the  protection  of  the 
laws. 

No  German  shall  be  limited  in  the  exercise  of  these  rights 
by  the  authorities  of  his  native  state,  or  by  the  authorities  of 
any  other  state  of  the  Confederation. 

The  regulations  governing  the  care  of  paupers  and  their 
admission  into  the  various  local  unions,  shall  not,  however,  be 
affected  by  the  principle  enunciated  in  the  first  paragraph. 

In  like  manner,  until  further  action,  those  treaties  shall 
remain  in  force  which  have  been  concluded  between  the 
several  states  of  the  Confederation  in  relation  to  the  taking 
over  of  persons  liable  to  be  deported,  the  care  of  sick  and  the 
burial  of  deceased  citizens. 

With  respect  to  the  performance  of  military  service  in  the 
several  states,  the  necessary  laws  will  be  passed  by  the  Empire. 

As  against  foreign  countries  all  Germans  shall  have  an 
equal  claim  upon  the  protection  of  the  Empire. 

ART.  4.  The  following  matters  shall  be  under  the  super- 
vision of  the  Empire  and  subject  to  imperial  legislation : 

(1)  Regulations  with  respect  to  the  freedom  of  migration; 
matters  of  domicile  and  settlement ;    citizenship ;  passports ; 
surveillance  of  foreigners;    trade  and  industry,  including  in- 
surance ;   so  far  as  these  matters  are  not  already  provided  for 
by  Art.  3  of  this  constitution,  in  Bavaria,  however,  exclusive 
of  matters  relating  to  domicile  and  settlement ;    and  likewise 
matters  relating  to  colonization  and  emigration  to  foreign 
countries. 

(2)  Legislation  concerning  customs  duties,  commerce,  and 
such  taxes  as  are  to  be  applied  to  the  uses  of  the  Empire. 

(3)  Regulation  of  weights  and  measures ;    of  the  coinage ; 
and  the  establishment  of  the  principles  for  the  issue  of  funded 
and  unfunded  paper  money. 

(4)  General  banking  regulations. 

(5)  Patents  for  inventions. 

(6)  The  protection  of  intellectual  property. 


CONSTITUTION   OF  THE   GERMAN   EMPIRE  339 

(7)  The  organization  of  a  general  system  of  protection  for 
German  trade  in  foreign  countries,  of  German  navigation,  and 
of  the  German  flag  on  the  high  seas ;  and  the  establishment  of 
a  common  consular  representation,  which  shall  be  maintained 
by  the  Empire. 

(8)  Railway  matters,  subject  in  Bavaria  to  the  provisions 
of  Art.  46 ;   and  the  construction  of  land  and  water  ways  for 
the  purposes  of  public  defense,  and  of  general  commerce. 

(9)  Rafting    and   navigation    upon   waterways    which    are 
common  to  several  states,  the  condition  of  such  waterways, 
river  and  other  water  dues  [and  also  the  signals  of  maritime 
navigation  (beacons,  buoys,  lights,  and  other  signals)].1 

(10)  Postal  and  telegraph  affairs  ;  in  Bavaria  and  Wiirttem- 
berg,   however,   only  in   accordance   with  the   provisions   of 
Art.  52. 

(11)  Regulations    concerning    the    reciprocal    execution    of 
judicial  sentences  in  civil  matters,  and  the  fulfillment  of  requisi- 
tions in  general. 

(12)  The  authentication  of  public  documents. 

(13)  General  legislation  as  to  the  whole  domain  of  civil  and 
criminal  law,  and  judicial  procedure.2 

(14)  The  imperial  military  and  naval  affairs. 

(15)  Police  regulation  of  medical  and  veterinary  matters. 

(16)  Laws  relating  to  the  press,  and  to  the  right  of  associa- 
tion. 

ART.  5.  The  legislative  power  of  the  Empire  shall  be 
exercised  by  the  Bundesrat  and  the  Reichstag.  A  majority 
of  the  votes  of  both  bodies  shall  be  necessary  and  sufficient 
for  the  passage  of  a  law. 

With  respect  to  laws  concerning  the  army,  or  navy,  or  the 
taxes  specified  in  Art.  35,  the  vote  of  the  prsesidium  3  shall 
decide  in  case  of  a  difference  of  opinion  in  the  Bundesrat,  if 
such  vote  be  in  favor  of  the  maintenance  of  existing  arrange- 
ments. 

III.  The  Bundesrat 

ART.  6.  The  Bundesrat  shall  consist  of  representatives  of 
the  members  of  the  Confederation,  among  which  the  votes 
shall  be  divided  in  such  manner  that  Prussia  with  the  former 

1  The  last  clause  of  this  section  was  added  by  law  of  March  3,  1873. 

8  As  amended  December  20,  1873.  The  original  text  read:  "General 
legislation  concerning  the  law  of  obligations,  criminal  law,  commercial  law  and 
commercial  paper,  and  judicial  procedure."  8  I.e.  Prussia. 


340  APPENDIX 

votes  of  Hanover,  Electoral  Hesse,  Holstein,  Nassau,  and 
Frankfort  shall  have  17  votes ;  Bavaria,  6 ;  Saxony,  4 ;  Wurt- 
temberg,  4 ;  Baden,  3 ;  Hesse,  3 ;  Mecklenburg-Schwerin,  2 ; 
Saxe- Weimar,  1 ;  Mecklenburg-Strelitz,  1 ;  Oldenburg,  1 ; 
Brunswick,  2 ;  Saxe-Meiningen,  1 ;  Saxe-Altenburg,  1 ;  Saxe- 
Coburg-Gotha,  1 ;  Anhalt,  1 ;  Schwarzburg-Rudolstadt,  1 ; 
Schwarzburg-Sondershausen,  1 ;  Waldeck,  1 ;  Reuss,  elder  line, 
1 ;  Reuss,  younger  line,  1 ;  Schaumburg-Lippe,  1 ;  Lippe,  1 ; 
Ltibeck,  1 ;  Bremen,  1 ;  Hamburg,  1  —  total,  58  votes. 

Each  member  of  the  Confederation  may  appoint  as  many 
delegates  to  the  Bundesrat  as  it  has  votes,  but  the  votes  of 
each  state  shall  be  cast  only  as  a  unit. 

ART.  7.     The  Bundesrat  shall  take  action  upon : 

(1)  The  measures  to  be  proposed  to  the  Reichstag,  and  the 
resolutions  passed  by  the  same. 

(2)  The    general    administrative    provisions    and    arrange- 
ments necessary  for  the  execution  of  the  imperial  laws,  so  far 
as  no  other  provision  is  made  by  law. 

(3)  The  defects  which  may  be  discovered  in  the  execution 
of  the  imperial  laws,  or  of  the  provisions  and  arrangements 
heretofore  mentioned. 

Each  member  of  the  Confederation  shall  have  the  right  to 
make  propositions  and  introduce  motions,  and  it  shall  be  the 
duty  of  the  presidium  to  submit  them  for  deliberation. 

Decision  shall  be  reached  by  simple  majority,  with  the  ex- 
ceptions provided  for  by  Arts.  5,  37,  and  78.  Votes  not  repre- 
sented or  not  instructed  shall  not  be  counted.  In  the  case  of 
a  tie,  the  vote  of  the  presidium  shall  decide. 

When  legislative  action  is  taken  upon  a  subject  which, 
according  to  the  provisions  of  this  constitution,  does  not  con- 
cern the  whole  Empire,  only  the  votes  of  those  states  of  the 
Confederation  interested  in  the  matter  in  question  shall  be 
counted. 

ART.  8.  The  Bundesrat  shall  appoint  from  its  own  mem- 
bers permanent  committees : 

(1)  On  the  army  and  the  fortifications. 

(2)  On  marine  affairs. 

(3)  On  customs  duties  and  taxes. 

(4)  On  commerce  and  trade. 

(5)  On  railroads,  posts,  and  telegraphs. 

(6)  On  judicial  affairs. 

(7)  On  accounts. 

In  each  of  these  committees  there  shall  be  representatives 


CONSTITUTION   OF  THE   GERMAN   EMPIRE  341 

of  at  least  four  states  of  the  Confederation,  besides  the  prse- 
sidium,  and  each  state  shall  be  entitled  to  only  one  vote  therein. 
In  the  committee  on  the  army  and  fortifications  Bavaria  shall 
have  a  permanent  seat ;  the  remaining  members  of  this  com- 
mittee, as  well  as  the  members  of  the  committee  on  marine 
affairs,  shall  be  appointed  by  the  Emperor ;  the  members  of  the 
other  committees  shall  be  elected  by  the  Bundesrat.  These 
committees  shall  be  newly  formed  at  each  session  of  the  Bun- 
desrat, i.e.  each  year,  and  the  retiring  members  shall  be 
eligible  for  re-election. 

A  Committee  on  Foreign  Affairs,  over  which  Bavaria  shall 
preside,  shall  also  be  appointed  in  the  Bundesrat;  it  shall  be 
composed  of  the  plenipotentiaries  of  the  kingdoms  of  Bavaria, 
Saxony,  and  Wurttemberg,  and  of  two  plenipotentiaries  of 
other  states  of  the  Empire,  who  shall  be  elected  annually  by 
the  Bundesrat. 

The  employees  necessary  for  the  conduct  of  their  work 
shall  be  placed  at  the  disposal  of  the  committees. 

ART.  9.  Each  member  of  the  Bundesrat  shall  have  the 
right  to  appear  in  the  Reichstag,  and  must  be  heard  there  at 
any  time  he  shall  so  request,  in  order  to  represent  the  views  of 
his  government,  even  when  such  views  shall  not  have  been 
adopted  by  the  majority  of  the  Bundesrat.  No  one  shall 
at  the  same  time  be  a  member  of  the  Bundesrat  and  of  the 
Reichstag. 

ART.  10.  The  Emperor  shall  afford  the  customary  diplo- 
matic protection  to  the  members  of  the  Bundesrat. 

IV.  The  Presidency 

ART.  11.  To  the  King  of  Prussia  shall  belong  the  presi- 
dency of  the  Confederation,  and  he  shall  have  the  title  of 
German  Emperor.  It  shall  be  the  duty  of  the  Emperor  to 
represent  the  Empire  among  nations,  to  declare  war  and  to 
conclude  peace  in  the  name  of  the  Empire,  to  enter  into  alli- 
ances and  other  treaties  with  foreign  countries,  to  accredit 
ambassadors  and  to  receive  them. 

For  a  declaration  of  war  in  the  name  of  the  Empire,  the 
consent  of  the  Bundesrat  is  required,  unless  an  attack  is  made 
upon  the  federal  territory  or  its  coasts. 

So  far  as  treaties  with  foreign  countries  relate  to  matters 
which,  according  to  Art.  4,  are  to  be  regulated  by  imperial 
legislation,  the  consent  of  the  Bundesrat  shall  be  required  for 


342  APPENDIX 

their  conclusion,  and  the  approval  of  the  Reichstag  shall  be 
necessary  to  render  them  valid. 

ART.  12.  The  Emperor  shall  have  the  right  to  convene  the 
Bundesrat  and  the  Reichstag,  and  to  open,  adjourn,  and  close 
them. 

ART.  13.  The  Bundesrat  and  the  Reichstag  shall  be  con- 
vened annually,  and  the  Bundesrat  may  be  called  together  for 
the  preparation  of  business  without  the  Reichstag ;  the  latter, 
however,  shall  not  be  convened  without  the  Bundesrat. 

ART.  14.  The  Bundesrat  shall  be  convened  whenever  a 
meeting  is  demanded  by  one  third  of  the  total  number  of 
votes. 

ART.  15.  The  Imperial  Chancellor,  to  be  appointed  by  the 
Emperor,  shall  preside  in  the  Bundesrat,  and  supervise  the  con- 
duct of  its  business. 

The  Imperial  Chancellor  shall  have  the  right  to  delegate  the 
power  to  represent  him  to  any  other  member  of  the  Bundesrat ; 
this  delegation  shall  be  made  in  writing. 

ART.  16.  The  necessary  bills  shall  be  laid  before  the 
Reichstag  in  the  name  of  the  Emperor,  hi  accordance  with  the 
resolutions  of  the  Bundesrat,  and  shall  be  advocated  in  the 
Reichstag  by  members  of  the  Bundesrat,  or  by  special  com- 
missioners appointed  by  the  latter. 

ART.  17.  It  shall  be  the  duty  of  the  Emperor  to  prepare 
and  publish  the  laws  of  the  Empire,  and  to  supervise  their 
execution.  The  decrees  and  ordinances  of  the  Emperor  shall 
be  issued  in  the  name  of  the  Empire,  and  shall  require  for 
their  validity  the  countersignature  of  the  Imperial  Chancellor, 
who  thereby  assumes  the  responsibility  for  them. 

ART.  18.  The  Emperor  shall  appoint  imperial  officials, 
cause  them  to  take  the  oath  to  the  Empire,  and  dismiss  them 
when  necessary. 

Officials  of  any  one  of  the  states  of  the  Confederation,  who 
shall  be  appointed  to  any  imperial  office,  shall  enjoy,  with 
reference  to  the  Empire,  the  same  rights  as  those  to  which  they 
are  entitled  in  their  native  state  by  virtue  of  their  official 
position,  provided  that  no  other  legislative  provision  shall  have 
been  made  previous  to  their  entrance  into  the  service  of  the 
Empire. 

ART.  19.  If  the  states  of  the  Confederation  do  not  fulfill 
their  constitutional  duties,  they  may  be  compelled  to  do  so  by 
execution.  This  execution  shall  be  decided  upon  by  the 
Bundesrat,  and  carried  out  by  the  Emperor. 


CONSTITUTION   OF  THE    GERMAN   EMPIRE  343 


V.  The  Reichstag 

ART.  20.  The  members  of  the  Reichstag  shall  be  chosen 
in  a  general  direct  election  and  by  secret  ballot. 

Until  regulation  by  law,  the  power  to  make  such  regula- 
tion being  reserved  by  sec.  5  of  the  Election  Law  of  May  31, 
1869,  48  deputies  shall  be  elected  in  Bavaria,  17  in  Wiir item- 
berg,  14  in  Baden,  6  hi  Hesse  south  of  the  River  Main,  and  the 
total  number  shall  consequently  be  382. l 

ART.  21.  Government  officials  shall  not  require  leave  of 
absence  in  order  to  enter  the  Reichstag. 

When  a  member  of  the  Reichstag  accepts  a  salaried  office 
of  the  Empire,  or  a  salaried  office  in  one  of  the  states  of  the 
Confederation,  or  accepts  any  office  of  the  Empire  or  of  a 
state  involving  higher  rank  or  salary,  he  shall  forfeit  his  seat 
and  vote  in  the  Reichstag,  but  may  recover  his  place  in  the 
same  by  a  new  election. 

ART.  22.     The  proceedings  of  the  Reichstag  shall  be  public. 

No  one  shall  be  held  responsible  for  truthful  reports  of  the 
proceedings  of  the  public  sessions  of  the  Reichstag. 

ART.  23.  The  Reichstag  shall  have  the  right  to  propose 
laws  within  the  competence  of  the  Empire,  and  to  refer  peti- 
tions, addressed  to  it,  to  the  Bundesrat  or  the  chancellor  of 
the  Empire. 

ART.  24.  The  Reichstag  shall  be  elected  for  five  years.2 
It  may  be  dissolved  during  that  time  by  a  resolution  of  the 
Bundesrat,  with  the  consent  of  the  Emperor. 

ART.  25.  In  case  of  a  dissolution  of  the  Reichstag,  new 
elections  shall  take  place  within  a  period  of  sixty  days,  and 
the  Reichstag  shall  be  called  together  within  a  period  of  ninety 
days  after  its  dissolution. 

ART.  26.  Without  the  consent  of  the  Reichstag,  an  ad- 
journment of  that  body  shall  not  exceed  the  period  of  thirty 
days,  and  shall  not  be  repeated  during  the  same  session. 

ART.  27.  The  Reichstag  shall  examine  into  the  legality 
of  the  election  of  its  members  and  decide  thereon.  It  shall 
regulate  its  own  procedure,  and  its  own  discipline,  through  its 

1  Including,  that  is  to  say,  those  deputies  returned  by  the  states  of  the  North 
German  Confederation.  By  law  of  June  25,  1873,  fifteen  additional  members 
are  elected  from  Alsace-Lorraine.  With  certain  minor  exceptions  every  male 
German  of  the  age  of  twenty-five  years  may  vote  for  members  of  and  may  be 
elected  to  the  Reichstag. 

8  Art.  24  amended,  from  three  to  five  years,  March  19,  1888. 


344  APPENDIX 

order  of  business,  and  elect  its  president,  vice-presidents,  and 
secretaries. 

ART.  28.  The  Reichstag  shall  take  action  by  absolute 
majority.  To  render  any  action  valid,  the  presence  of  a 
majority  of  the  statutory  number  of  members  is  required.1 

ART.  29.  The  members  of  the  Reichstag  are  the  represen- 
tatives of  the  people  as  a  whole,  and  shall  not  be  bound  by 
orders  or  instructions. 

ART.  30.  No  member  of  the  Reichstag  shall  at  any  time 
suffer  legal  or  disciplinary  prosecution  on  account  of  his  vote, 
or  on  account  of  utterances  made  while  in  the  performance  of 
his  functions,  or  be  held  responsible  in  any  other  way  outside 
of  the  Reichstag. 

ART.  31.  Without  the  consent  of  the  Reichstag,  no  one 
of  its  members  shall  be  tried  or  arrested  during  the  session 
for  any  penal  offense,  unless  he  be  taken  in  the  commission 
of  the  offense,  or  during  the  course  of  the  following  day. 

Like  consent  shall  be  required  in  the  case  of  arrest  for  debt. 

At  the  request  of  the  Reichstag  all  criminal  proceedings 
instituted  against  one  of  its  members,  and  any  detentions  for 
judicial  inquiry  or  in  civil  cases,  shall  be  suspended  during 
its  session. 

ART.  32.  The  members  of  the  Reichstag  as  such  shall 
receive  no  salaries.  They  shall  receive  an  indemnification  in 
accordance  with  the  provisions  of  law.2 

VI.  Customs  and  Commerce 

ART.  33.  Germany  shall  form  one  customs  and  commercial 
territory,  having  a  common  frontier  for  the  collection  of  duties. 
Such  parts  of  the  territory  as  cannot,  by  reason  of  their  situa- 
tion, be  suitably  embraced  within  the  customs  frontier,  shall 
be  excluded. 

All  articles  which  are  the  subject  of  free  traffic  in  one 

1  The  second  paragraph  of  this  article  was  repealed  by  law  of  February  24, 
1873.     It  read  as  follows:    "For  the  decision  of  matters  which,  according  to 
this  constitution,  do  not  concern  the  entire  Empire,  only  such  members  shall 
vote  as  are  elected  from  states  whose  interests  are  affected  by  the  proposition." 

2  As  altered  May  21,  1906.     Art.  32,  as  originally  worded,  forbade  any  com- 
pensation to  members  of  the  Reichstag.     A  law  of  May  21,  1906,  provides  that 
members  of  the  Reichstag  shall  receive :    (1)  free  transportation  on  the  German 
railways  during  the  sessions  of  the  Reichstag  and  for  eight  days  before  the  begin- 
ning of  and  eight  days  after  the  close  of  each  session ;  and  (2)  a  yearly  remunera- 
tion of  three  thousand  marks. 


CONSTITUTION  OF  THE   GERMAN  EMPIRE  345 

state  of  the  Empire  may  be  brought  into  any  other  state,  and 
in  the  latter  shall  be  subject  only  to  such  internal  taxes  as  are 
imposed  upon  similar  domestic  productions. 

ART.  34.  The  Hanse  cities,  Bremen  and  Hamburg,  to- 
gether with  a  part  of  their  own  or  of  the  surrounding  territory 
suitable  for  such  purpose,  shall  remain  free  ports  outside  of 
the  common  customs  frontier,  until  they  request  admission 
within  such  frontier. 

ART.  35.  The  Empire  shall  have  the  exclusive  power  to 
legislate  concerning  everything  relating  to  the  customs;  con- 
cerning the  taxation  of  salt  and  tobacco  produced  in  the  federal 
territory,  and  of  domestic  brandy  and  beer,  and  of  sugar  and 
sirup  prepared  from  beets  or  other  domestic  products;  con- 
cerning the  mutual  protection  against  fraud  with  reference  to 
all  taxes  upon  articles  of  consumption  levied  in  the  several 
states  of  the  Empire ;  as  well  as  concerning  the  measures  which 
may  be  required  in  the  territory,  outside  the  customs  bound- 
aries, for  the  security  of  the  common  customs  frontier. 

In  Bavaria,  Wurttemberg,  and  Baden,  the  matter  of  taxing 
domestic  brandy  and  beer  is  reserved  to  the  legislation  of  the 
states.  The  states  of  the  Confederation  shall,  however,  en- 
deavor to  bring  about  uniform  legislation  regarding  the  taxa- 
tion of  these  articles  also. 

ART.  36.  The  administration  and  collection  of  customs 
duties  and  of  the  taxes  on  articles  of  consumption  (Art.  35) 
shall  be  left  to  each  state  of  the  Confederation  within  its  own 
territory,  so  far  as  these  functions  have  heretofore  been  exer- 
cised by  each  state. 

The  Emperor  shall  superintend  the  observance  of  legal 
methods  by  means  of  imperial  officers  whom  he  shall  appoint, 
after  consulting  the  committee  of  the  Bundesrat  on  customs 
duties  and  taxes,  to  act  hi  cooperation  with  the  customs  or 
tax  officials  and  with  the  directive  boards  of  the  several  states. 

Reports  made  by  these  officers  concerning  defects  in  the 
administration  of  the  joint  legislation  (Art.  35)  shall  be  sub- 
mitted to  the  Bundesrat  for  action. 

ART.  37.  In  taking  action  upon  the  rules  and  regulations 
for  the  execution  of  the  joint  legislation  (Art.  35),  the  vote 
of  the  presidium  shall  decide  when  it  is  cast  in  favor  of  main- 
taining the  existing  rule  or  regulation. 

ART.  38.  The  revenues  from  customs  and  from  the  other 
taxes  designated  hi  Art.  35,  so  far  as  the  latter  are  subject  to 
imperial  legislation,  shall  go  to  the  treasury  of  the  Empire. 


346  APPENDIX 

Such  revenues  shall  consist  of  the  total  receipts  from  the 
customs  and  excise  taxes,  after  deducting  therefrom  : 

(1)  Tax  rebates  and  reductions  in  conformity  with  existing 
laws  or  general  administrative  regulations. 

(2)  Reimbursements  for  taxes  improperly  collected. 

(3)  The  costs  of  collection  and  of  administration,  viz.  : 

(a)  In  case  of  the  customs,  the  costs  which  are  required  for 
the  protection  and  collection  of  customs  on  the  frontiers  and 
in  the  frontier  districts. 

(b)  For  the  salt  tax,  the  costs  which  are  incurred  for  the 
salaries  of  the  officers  charged  with  the  collection  and  control 
of  this  tax  at  the  salt  works. 

(c)  For  the  taxes  on  beet  sugar  and  on  tobacco,  the  com- 
pensation which  is  to  be  allowed,  according  to  the  existing 
rules  of  the  Bundesrat,  to  the  several  state  governments  for 
the  cost  of  administering  these  taxes. 

(d)  Fifteen  per  cent  of  the  total  receipts  from  other  taxes. 
The  territories  situated  outside  of  the   common   customs 

frontier  shall  contribute  to  the  expenses  of  the  Empire  by  pay- 
ment of  a  lump  sum. 

Bavaria,  Wiirttemberg,  and  Baden  shall  not  share  in  the 
revenues  which  go  into  the  treasury  of  the  Empire,  from  duties 
on  brandy  and  beer,  nor  in  the  corresponding  portion  of  the 
aforesaid  payments  in  lump  sum. 

[The  provision  of  Art.  38,  paragraph  2,  number  3  (d)  of  the 
imperial  constitution  is  repealed,  in  so  far  as  it  relates  to 
the  tax  on  breweries.  The  compensation  to  be  allowed  to 
the  states  for  the  expense  of  collecting  and  administering  the 
tax  on  breweries  shall  be  fixed  by  the  Bundesrat.1] 

ART.  39.  The  quarterly  summaries  made  by  the  revenue 
officers  of  the  federal  states  at  the  end  of  each  quarter,  and 
the  final  statement,  made  at  the  end  of  the  year,  after  the 
closing  of  the  accounts,  of  the  receipts  which  have  become  due 
in  the  course  of  the  quarter,  or  during  the  fiscal  year,  from 
customs  and  from  taxes  on  consumption  which,  according  to 
Art.  38,  belong  to  the  treasury  of  the  Empire,  shall  be  ar- 
ranged by  the  administrative  officers  of  the  various  states, 
after  a  preliminary  audit,  into  general  summaries,  in  which 
each  tax  shall  be  separately  entered.  These  summaries  shall 
be  transmitted  to  the  Committee  of  Accounts  of  the  Bundesrat. 

The  latter,  upon  the  basis  of  these  summaries,  shall  fix 
provisionally  every  three  months  the  amounts  due  to  the 

1  Added  by  amendment  of  June  3,  1906. 


CONSTITUTION   OF  THE   GERMAN   EMPIRE  347 

imperial  treasury  from  the  treasury  of  each  state,  and  it  shall 
inform  the  Bundesrat  and  the  states  of  the  amounts  so  fixed ; 
furthermore,  it  shall  submit  to  the  Bundesrat  annually  the 
final  statement  of  these  amounts  with  its  remarks.  The 
Bundesrat  shall  take  action  upon  the  determination  of  such 
amounts. 

ART.  40.  The  terms  of  the  Customs  Union  Treaty  of 
July  8,  1867,  shall  remain  in  force,  so  far  as  they  have  not 
been  altered  by  the  provisions  of  this  constitution,  and  so  long 
as  they  are  not  altered  in  the  manner  designated  in  Arts.  7  or 
78. 

VII.  Railways 

ART.  41.  Railways,  which  are  considered  necessary  for 
the  defense  of  Germany,  or  in  the  interest  of  general  com- 
merce, may,  by  force  of  imperial  law,  be  constructed  at  the 
expense  of  the  Empire,  even  against  the  opposition  of  the 
members  of  the  Union  through  whose  territory  the  railroads 
run,  without  prejudice,  however,  to  the  sovereign  rights  of  the 
states;  or  private  persons  may  be  granted  the  right  to  con- 
struct railways,  and  receive  the  right  of  eminent  domain. 

Every  existing  railway  is  bound  to  permit  new  railroad 
lines  to  be  connected  with  it,  at  the  expense  of  the  latter. 

All  laws  which  grant  existing  railway  undertakings  the 
right  to  prevent  the  building  of  parallel  or  competitive  lines 
are  hereby  repealed  throughout  the  Empire,  without  prejudice 
to  rights  already  acquired.  Such  rights  of  prevention  shall  not 
be  granted  in  future  concessions. 

ART.  42.  The  governments  of  the  federal  states  bind 
themselves,  in  the  interest  of  general  commerce,  to  manage 
the  German  railways  as  one  system,  and  for  this  purpose  to 
have  all  new  lines  constructed  and  equipped  according  to  a 
uniform  plan. 

ART.  43.  Accordingly,  as  soon  as  possible,  uniform  ar- 
rangements as  to  operation  shall  be  made,  and  especially  shall 
uniform  regulations  be  adopted  for  the  police  of  railways. 
The  Empire  shall  take  care  that  the  various  railway  admin- 
istrations keep  the  roads  at  all  times  in  such  condition  as  is 
necessary  for  public  security  and  furnish  them  with  such 
equipment  as  the  needs  of  traffic  may  require. 

ART.  44.  Railway  administrations  are  bound  to  run  as 
many  passenger  trains  of  suitable  speed  as  may  be  required 
for  through  traffic,  and  for  the  establishment  of  harmony 


348  APPENDIX 

between  time  tables;  also  to  make  provision  for  such  freight 
trains  as  may  be  necessary  for  the  transport  of  gpods;  and  to 
organize  a  system  of  through  forwarding  both  in  passenger 
and  freight  traffic,  permitting  rolling  stock  to  go  from  one  road 
to  another  for  the  usual  remuneration. 

ART.  45.  The  Empire  shall  have  control  of  the  tariff  of 
charges.  It  shall  especially  exert  itself  to  the  end : 

(1)  That  uniform  regulations  as  to  operation  be  introduced 
as  soon  as  possible  on  all  German  railway  lines. 

(2)  That  the  tariff  be  reduced  and  made  uniform  as  far  as 
possible,  and  particularly  that  in  the  long-distance  transporta- 
tion of  coal,  coke,  wood,  ores,  stone,  salt,  pig  iron,  manure,  and 
similar  articles,  a  tariff  be  introduced  suitably  modified  in  the 
interests  of  agriculture  and  industry ;  and  that  the  one-pfennig 
tariff  be  introduced  as  soon  as  practicable. 

ART.  46.  In  case  of  public  distress,  especially  in  case  of 
an  extraordinary  rise  in  the  price  of  provisions,  it  shall  be 
the  duty  of  the  railroads  to  adopt  temporarily  a  low  special 
tariff  suited  to  the  circumstances,  to  be  fixed  by  the  Emperor 
on  motion  of  the  competent  committee  of  the  Bundesrat,  for 
the  transport  of  grain,  flour,  legumes,  and  potatoes.  This 
tariff  shall,  however,  not  be  lower  than  the  lowest  existing 
rate  for  raw  produce  on  the  said  line. 

The  foregoing  provisions,  and  those  of  Arts.  42  to  45,  shall 
not  apply  to  Bavaria. 

The  imperial  government,  however,  shall  have  the  power, 
with  respect  to  Bavaria  also,  to  establish  by  means  of  legisla- 
tion uniform  standards  for  the  construction  and  equipment 
of  railways  which  may  be  of  importance  for  the  defense  of 
the  country. 

ART.  47.  The  managers  of  all  railways  shall  be  required 
to  obey,  without  hesitation,  requisitions  made  by  the  authorities 
of  the  Empire  for  the  use  of  their  roads  for  the  defense  of 
Germany.  In  particular  shall  troops  and  all  materials  of  war 
be  forwarded  at  uniformly  reduced  rates. 

VIII.  Post  and  Telegraph 

ART.  48.  The  postal  and  telegraph  systems  shall  be 
organized  and  managed  on  a  uniform  plan,  as  state  institu- 
tions throughout  the  German  Empire. 

The  legislation  of  the  Empire  in  regard  to  postal  and  tele- 
graph affairs,  provided  for  in  Art.  4,  shall  not  extend  to  those 


CONSTITUTION   OF  THE   GERMAN   EMPIRE  349 

matters  the  control  of  which  is  left  to  governmental  ordinance 
or  administrative  regulation,  according  to  the  principles  which 
have  prevailed  in  the  administration  of  post  and  telegraph  by 
the  North  German  Confederation. 

ART.  49.  The  receipts  from  post  and  telegraph  through- 
out the  Empire  shall  belong  to  a  common  fund.  The  expense 
shall  be  paid  from  the  general  receipts.  The  surplus  shall  go 
into  the  imperial  treasury  (Section  XII). 

ART.  50.  The  Emperor  shall  have  the  supreme  super- 
vision of  the  administration  of  post  and  telegraph.  The 
officers  appointed  by  him  shall  have  the  duty  and  the  right 
to  see  to  it  that  uniformity  be  established  and  maintained  in 
the  organization  of  the  administration  and  in  the  conduct  of 
business,  as  well  as  in  the  qualifications  of  employees. 

The  Emperor  shall  have  the  power  to  issue  governmental 
instructions  and  general  administrative  regulations,  and  also 
the  exclusive  right  to  regulate  the  relations  with  the  postal 
and  telegraph  systems  of  other  countries. 

It  shall  be  the  duty  of  all  officers  of  the  postal  and  telegraph 
administration  to  obey  the  orders  of  the  Emperor.  This  obli- 
gation shall  be  assumed  in  the  oath  of  office. 

The  appointment  of  such  superior  officers  as  shall  be  re- 
quired for  the  administration  of  the  post  and  telegraph  in  the 
various  districts  (such  as  directors,  counselors,  and  superin- 
tendents), furthermore,  the  appointment  of  officers  of  the  post 
and  telegraph  acting  in  the  capacity  of  organs  of  the  aforesaid 
authorities  as  supervisors  or  for  other  services  in  the  several 
districts  (such  as  inspectors  or  controllers),  shall  be  made 
throughout  the  Empire  by  the  Emperor,  to  whom  such  officers 
shall  take  the  oath  of  office.  The  governments  of  the  several 
states  shall  receive  timely  notice  of  the  aforementioned  appoint- 
ments, as  far  as  they  may  relate  to  their  territories,  so  that 
they  may  confirm  and  publish  them. 

Other  officers  required  in  the  administration  of  the  post 
and  telegraph,  as  well  as  all  those  employed  for  local  and 
technical  work,  including  the  officials  in  the  local  offices,  and 
so  forth,  shall  be  appointed  by  the  governments  of  the  respec- 
tive states. 

Where  there  is  no  independent  state  administration  of  post 
or  telegraph,  the  terms  of  special  treaties  shall  control. 

ART.  51.  In  consideration  of  the  differences  which  have 
heretofore  existed  in  the  net  receipts  of  the  state  postal  ad- 
ministrations of  the  several  districts,  and  for  the  purpose  of 


350  APPENDIX 

securing  a  suitable  equalization  during  the  period  of  transition 
below  named,  the  following  procedure  shall  be  observed  in 
assigning  the  surplus  of  the  postal  administration  for  general 
imperial  purposes  (Art.  49) : 

From  the  postal  surpluses  which  accumulated  in  the  several 
postal  districts  during  the  five  years  from  1861  to  1865,  a 
yearly  average  shall  be  computed,  and  the  share  which  every 
separate  postal  district  has  had  in  the  surplus  resulting  there- 
from for  the  whole  territory  of  the  Empire,  shall  be  expressed 
in  a  percentage. 

In  accordance  with  the  ratio  thus  ascertained,  the  several 
states  shall  be  credited  on  the  account  of  their  other  contribu- 
tions to  the  expenses  of  the  Empire,  with  their  quota  accruing 
from  the  postal  surplus  in  the  Empire,  for  a  period  of  eight 
years  following  their  entrance  into  the  postal  administration 
of  the  Empire. 

At  the  end  of  the  said  eight  years  the  distinction  shall  cease, 
and  any  surplus  from  the  postal  administration  shall  go,  with- 
out division,  into  the  imperial  treasury,  according  to  the  prin- 
ciple contained  in  Art.  49. 

Of  the  quota  of  the  postal  surplus  which  accrues  during 
the  aforementioned  period  of  eight  years  in  favor  of  the  Hanse 
cities,  one  half  shall  each  year  be  placed  at  the  disposal  of  the 
Emperor,  for  the  purpose  of  providing  for  the  establishment 
of  the  proper  postal  organizations  in  the  Hanse  cities. 

ART.  52.  The  provisions  of  the  foregoing  Arts.  48  to  51 
do  not  apply  to  Bavaria  and  Wurttemberg.  In  their  place 
the  following  provisions  shall  be  valid  for  these  two  states 
of  the  Empire : 

The  Empire  alone  shall  have  power  to  legislate  upon  the 
privileges  of  the  post  and  telegraph,  upon  the  legal  relations 
of  both  institutions  to  the  public,  upon  the  franking  privilege 
and  the  postal  rates,  excepting,  however,  the  adoption  of 
administrative  regulations  and  of  rates  for  the  internal  com- 
munication within  Bavaria  and  Wurttemberg  respectively ;  and, 
under  like  limitations,  upon  the  fixing  of  charges  for  tele- 
graphic correspondence. 

In  the  same  manner,  the  Empire  shall  have  the  regulation 
of  postal  and  telegraphic  communication  with  foreign  coun- 
tries, excepting  the  immediate  intercourse  of  Bavaria  and 
Wurttemberg  with  neighboring  states  not  belonging  to  the 
Empire,  the  regulation  of  which  is  subject  to  the  provisions 
of  Art.  49  of  the  postal  treaty  of  November  23,  1867. 


CONSTITUTION    OF   THE    GERMAN   EMPIRE  351 

Bavaria  and  Wiirttemberg  shall  not  share  in  the  postal  and 
telegraphic  receipts  coming  into  the  treasury  of  the  Empire. 

IX.  Marine  and  Navigation 

ART.  53.  The  navy  of  the  Empire  shall  be  a  united  one, 
under  the  supreme  command  of  the  Emperor.  The  Emperor 
is  charged  with  its  organization  and  construction;  he  shall 
appoint  the  officers  and  employees  of  the  navy,  and  they  and 
the  seamen  shall  take  an  oath  of  obedience  to  him. 

The  harbor  of  Kiel  and  the  harbor  of  the  Jade  are  imperial 
naval  ports. 

The  expense  required  for  the  establishment  and  mainte- 
nance of  the  navy  and  of  the  institutions  connected  therewith 
shall  be  defrayed  from  the  treasury  of  the  Empire. 

All  seafaring  men  of  the  Empire,  including  machinists  and 
artisans  employed  in  ship-building,  are  exempt  from  service 
in  the  army,  but  are  liable  to  service  in  the  imperial  navy.1 

ART.  54/  The  merchant  vessels  of  all  states  of  the  Union 
shall  form  a  united  mercantile  marine. 

The  Empire  shall  determine  the  process  for  ascertaining 
the  tonnage  of  sea-going  vessels,  shall  regulate  the  issuing  of 
tonnage-certificates  and  of  ship-certificates,  and  shall  fix  the 
conditions  upon  which  a  license  to  command  a  sea-going  vessel 
shall  be  granted. 

The  merchant  vessels  of  all  the  federated  states  shall  be 
admitted  on  equal  footing  to  the  harbors  and  all  natural  and 
artificial  watercourses  of  the  several  states  of  the  Union,  and 
shall  be  accorded  similar  treatment  therein.  The  fees  which 
may  be  collected  in  harbors,  from  sea-going  vessels  or  from 
their  cargoes,  for  the  use  of  marine  institutions,  shall  not 
exceed  the  amount  necessary  for  the  maintenance  and  ordinary 
repair  of  these  institutions. 

On  all  natural  watercourses  taxes  may  only  be  levied  for 
the  use  of  special  institutions  which  serve  to  facilitate  com- 
mercial intercourse.  These  taxes  as  well  as  the  charge  for 
navigating  such  artificial  channels  as  are  the  property  of  the 
state  shall  not  exceed  the  amount  required  for  the  maintenance 

1  Paragraph  5  of  Art.  53  was  repealed  by  law  of  May  26,  1893 ;  it  read  as 
follows:  "The  apportionment  of  requisitions  to  supply  the  ranks  of  the  navy 
shall  be  made  according  to  the  actual  seafaring  population,  and  the  number 
furnished  in  accordance  herewith  by  each  state  shall  be  deducted  from  the  num- 
ber otherwise  required  for  the  army." 


352  APPENDIX 

and  ordinary  repair  of  such  institutions  and  establishments. 
These  provisions  shall  apply  to  rafting,  in  so  far  as  it  is  carried 
on  along  navigable  watercourses. 

The  power  to  lay  other  or  higher  taxes  upon  foreign  vessels 
or  their  cargoes  than  those  which  are  paid  by  the  vessels  of 
the  federal  states  or  their  cargoes  shall  belong  only  to  the 
Empire  and  not  to  the  separate  states. 

ART.  55.  The  flag  of  the  naval  and  merchant  marine  is 
black,  white,  and  red. 

X.  Consular  Affairs 

ART.  56.  The  Emperor  shall  have  the  supervision  of  all 
consular  affairs  of  the  German  Empire,  and  he  shall  appoint 
consuls,  after  hearing  the  Committee  of  the  Bundesrat  on 
Trade  and  Commerce. 

No  new  state  consulates  shall  be  established  within  the 
districts  covered  by  German  consuls.  German  consuls  shall 
perform  the  functions  of  state  consuls  for  the  states  of  the 
Union  not  represented  in  their  districts.  All  the  state  con- 
sulates now  existing  shall  be  abolished  as  soon  as  the  organiza- 
tion of  the  German  consulates  shall  be  completed  in  such  a 
manner  that  the  representation  of  the  separate  interests  of  all 
the  federal  states  shall  be  recognized  by  the  Bundesrat  as 
satisfactorily  secured  by  the  German  consulates. 

XI.  Military  Affairs  of  the  Empire 

ART.  57.  Every  German  is  liable  to  military  duty,  and  in 
the  discharge  of  this  duty  no  substitute  shall  be  accepted. 

ART.  58.  The  costs  and  the  burden  of  the  entire  military 
system  of  the  Empire  shall  be  borne  equally  by  all  the  federal 
states  and  their  subjects,  so  that  neither  special  privileges  nor 
burdens  upon  particular  states  or  classes  are  in  principle  per- 
missible. Where  an  equal  distribution  of  the  burdens  cannot 
be  effected  in  natura  without  prejudice  to  the  public  welfare, 
the  equalization  shall  be  effected  by  legislation  in  accordance 
with  the  principles  of  justice. 

ART.  59.  Every  German  capable  of  bearing  arms  shall 
belong  for  seven  years  to  the  standing  army,  as  a  rule  from 
the  end  of  his  twentieth  to  the  beginning  of  his  twenty-eighth 
year ;  during  the  next  five  years  he  shall  belong  to  the  national 
guard  (Landwehr)  of  first  summons,  and  then  to  the  national 


CONSTITUTION   OF  THE   GERMAN   EMPIRE  353 

guard  of  second  summons  until  the  thirty-first  day  of  March  of 
the  year  in  which  he  reaches  the  age  of  thirty-nine  years. 

During  the  period  of  service  in  the  standing  army  the  mem- 
bers of  the  cavalry  and  of  the  mounted  field  artillery  are  re- 
quired to  serve  the  first  three  years  in  unbroken  active  service ; 
all  other  forces  are  required  to  give  the  first  two  years  in  active 
service. 

As  regards  the  emigration  of  men  belonging  to  the  reserve, 
only  those  provisions  shall  be  in  force  which  apply  to  the  emi- 
gration of  members  of  the  national  guard  (Landwehr).1 

ART.  60.  The  number  of  men  in  the  German  army  in 
time  of  peace  shall  be  fixed  until  the  thirty-first  day  of  Decem- 
ber, 1871,  at  1  per  cent  of  the  population  of  1867,  and  shall 
be  furnished  by  the  several  federal  states  in  proportion  to 
their  population.  After  the  above  date  the  effective  strength  of 
the  army  in  time  of  peace  shall  be  fixed  by  imperial  legislation. 

ART.  61.  After  the  publication  of  this  constitution  the 
entire  Prussian  system  of  military  legislation  shall  be  intro- 
duced without  delay  throughout  the  Empire,  both  the  statutes 
themselves  and  the  regulations,  instructions,  and  ordinances 
issued  for  their  execution,  explanation,  or  completion;  es- 
pecially, the  military  penal  code  of  April  3,  1845 ;  the  law  of 
military  penal  procedure  of  April  3,  1845 ;  the  ordinance  con- 
cerning the  courts  of  honor,  of  July  20,  1843 ;  the  regulations 
with  respect  to  recruiting,  time  of  service,  matters  relating  to 
quarters  and  subsistence,  to  the  quartering  of  troops,  to  com- 
pensation for  injury  done  to  fields,  to  mobilization  of  troops, 
etc.,  in  times  of  peace  and  war.  The  military  ordinance 
relating  to  religious  observances  is,  however,  excepted. 

When  a  uniform  organization  of  the  German  army  for 
war  purposes  shall  have  been  established,  a  comprehensive 
military  code  for  the  Empire  shall  be  submitted  to  the  Reichs- 
tag and  the  Bundesrat  for  their  action,  in  accordance  with  the 
constitution. 

ART.  62.  For  the  purpose  of  defraying  the  expenses  of 
the  whole  German  army,  and  of  the  institutions  connected 
therewith,  the  sum  of  two  hundred  and  twenty-five  thalers 
for  each  man  in  the  army  on  the  peace  footing,  according  to 
Art.  60,  shall  be  annually  placed  at  the  disposal  of  the  Em- 
peror until  the  thirty-first  day  of  December,  1871  (see  Section 
XII). 

1  This  article  is  given  as  amended  by  law  of  April  15,  1905.  It  was  also 
altered  by  law  of  February  11,  1888. 

2A 


354  APPENDIX 

After  the  thirty-first  day  of  December,  1871,  the  several 
states  shall  pay  these  contributions  into  the  imperial  treasury. 
Until  it  is  altered  by  a  law  of  the  Empire,  the  strength  of  the 
army  in  time  of  peace,  as  temporarily  fixed  in  Art.  60,  shall 
be  taken  as  a  basis  for  calculating  the  amounts  of  such  con- 
tributions. 

The  expenditure  of  these  sums  for  the  imperial  army  and  its 
establishments  shall  be  fixed  by  the  budgetary  law. 

In  determining  the  budget  of  military  expenditure,  the  or- 
ganization of  the  imperial  army,  legally  established  in  accord- 
ance with  this  constitution,  shall  be  taken  as  a  basis. 

ART1.  63.  The  total  land  force  of  the  Empire  shall  form 
one  army,  which  shall  be  under  the  command  of  the  Emperor, 
in  war  and  in  peace. 

The  regiments,  etc.,  throughout  the  whole  German  army 
shall  bear  continuous  numbers.  As  to  the  uniform,  the  pri- 
mary colors  and  cut  of  the  Prussian  uniform  shall  be  the 
standard.  It  is  left  to  commanders  of  the  several  contin- 
gents to  determine  upon  external  marks  of  distinction  (cock- 
ades, etc.). 

It  shall  be  the  duty  and  the  right  of  the  Emperor  to  take 
care  that  throughout  the  German  army  all  divisions  be  kept 
full  and  ready  to  take  the  field,  and  that  uniformity  be  estab- 
lished and  maintained  in  regard  to  organization  and  formation, 
equipment  and  command,  in  the  training  of  the  men,  and  in 
the  qualifications  of  the  officers.  For  this  purpose  the  Emperor 
shall  have  authority  to  satisfy  himself  at  any  time,  by  inspec- 
tion, of  the  condition  of  the  several  contingents,  and  to  order 
the  correction  of  defects  disclosed  by  such  inspection. 

The  Emperor  shall  determine  the  strength,  composition,  and 
division  of  the  contingents  of  the  imperial  army,  and  also  the 
organization  of  the  national  guard  (Landwehr) ,  and  he  shall 
have  the  right  to  determine  the  garrisons  within  the  territory 
of  the  Union,  as  also  to  mobilize  any  portion  of  the  imperial 
army. 

In  order  to  maintain  the  indispensable  unity  in  the  admin- 
istration, care,  arming,  and  equipment  of  all  divisions  of  the 
German  army,  all  orders  relating  to  these  matters  hereafter 
issued  to  the  Prussian  army  shall  be  communicated,  for  their 
proper  observance,  to  the  commanders  of  the  other  contingents, 
through  the  Committee  on  the  Army  and  Fortifications  pro- 
vided for  by  Art.  8,  No.  1. 

ART.  64.     All  German  troops  are  bound  to  render  uncon- 


CONSTITUTION   OF  THE   GERMAN  EMPIRE  355 

ditional  obedience  to  the  commands  of  the  Emperor.  This 
obligation  shall  be  included  in  the  military  oath. 

The  commander-in-chief  of  a  contingent,  as  well  as  all  offi- 
cers commanding  troops  of  more  than  one  contingent,  and  all 
commanders  of  fortresses,  shall  be  appointed  by  the  Emperor. 
The  officers  appointed  by  the  Emperor  shall  take  the  military 
oath  to  him.  The  appointment  of  generals,  and  of  officers 
performing  the  duties  of  generals  within  a  contingent,  shall 
in  every  case  be  subject  to  the  approval  of  the  Emperor. 

In  the  transfer  of  officers,  with  or  without  promotion,  to 
positions  which  are  to  be  filled  by  him  in  the  service  of  the 
Empire,  be  it  in  the  Prussian  army  or  in  other  contingents, 
the  Emperor  shall  have  the  right  to  select  from  the  officers 
of  all  the  contingents  of  the  imperial  army. 

AKT.  65.  The  right  to  construct  fortresses  within  the 
federal  territory  shall  belong  to  the  Emperor,  who  shall  ask 
in  accordance  with  Section  XII  for  the  grant  of  the  means 
required  for  that  purpose,  unless  it  has  already  been  included 
in  the  regular  appropriation. 

ART.  66.  In  the  absence  of  special  conventions,  the  princes 
of  the  Confederation  and  the  Senates  shall  appoint  the  officers 
of  their  respective  contingents,  subject  to  the  restriction  of 
Art.  64.  They  shall  be  the  heads  of  all  of  the  divisions  of 
troops  belonging  to  their  territories,  and  shall  enjoy  the  honors 
connected  therewith.  They  shall  have  particularly  the  right 
to  hold  inspections  at  any  time,  and  shall  receive,  besides  the 
regular  reports  and  announcements  of  changes  to  be  made, 
timely  information  of  all  promotions  and  appointments  con- 
cerning their  respective  contingents,  in  order  to  provide  for 
the  necessary  publication  of  such  information  by  state  authority. 

They  shall  also  have  the  right  to  employ,  for  police  pur- 
poses, not  only  their  own  troops,  but  all  other  divisions  of  the 
imperial  army  which  may  be  stationed  in  their  respective  terri- 
tories. 

ART.  67.  Unexpended  portions  of  the  military  appropria- 
tion shall  under  no  circumstances  fall  to  the  share  of  a  single 
government,  but  at  all  times  to  the  imperial  treasury. 

ART.  68.  The  Emperor  shall  have  the  power,  if  public 
security  within  the  federal  territory  is  threatened,  to  declare 
martial  law  in  any  part  of  the  Empire.  Until  the  publication 
of  a  law  regulating  the  occasions,  the  form  of  announcement, 
and  the  effects  of  such  a  declaration,  the  provisions  of  the  Prus- 
sian law  of  June  4,  1851,  shall  be  in  force. 


356  APPENDIX 

Final  Provision  of  Section  XI 

The  provisions  contained  in  this  section  shall  be  applied  in 
Bavaria,  hi  accordance  with  the  more  detailed  provisions  of 
the  treaty  of  alliance  of  November  23,  1870,  under  III,  sec.  5 ; 
in  Wiirttemberg,  in  accordance  with  the  more  detailed  provi- 
sions of  the  military  convention  of  November  21-25,  1870. 

XII.   Finances  of  the  Empire 

ART.  69.  All  receipts  and  expenditures  of  the  Empire 
shall  be  estimated  for  each  year,  and  included  in  the  budget. 
The  latter  shall  be  fixed  by  law  before  the  beginning  of  the 
fiscal  year,  in  accordance  with  the  following  principles : 

ART.  70.  For  the  defrayal  of  all  common  expenses  there 
shall  serve  first  of  all  the  joint  revenues  derived  from  customs 
duties,  from  common  taxes,  from  the  railway,  postal,  and 
telegraph  systems,  and  from  the  other  branches  of  the  adminis- 
tration. In  so  far  as  the  expenditures  are  not  covered  by 
such  receipts,  they  shall  be  met  by  contributions  from  the 
several  states  of  the  Confederation  in  proportion  to  their 
population,  such  contributions  to  be  fixed  by  the  Imperial 
Chancellor,  with  reference  to  the  total  amount  established  by 
the  budget.  In  so  far  as  these  contributions  are  not  used,  they 
shall  be  repaid  to  the  states  at  the  end  of  the  year,  in  propor- 
tion as  the  other  regular  receipts  of  the  Empire  exceed  its 
needs. 

Any  surpluses  from  preceding  years  shall  be  used,  so  far 
as  the  imperial  budgetary  law  does  not  otherwise  provide, 
for  defraying  the  joint  extraordinary  expenses.1 

ART.  71.  The  general  appropriations  shall,  as  a  rule,  be 
granted  for  one  year ;  they  may,  however,  in  special  cases,  be 
granted  for  a  longer  period. 

During  the  period  of  transition  fixed  by  Art.  60,  the  properly 
classified,  financial  estimate  of  the  expenditures  of  the  army 
shall  be  laid  before  the  Bundesrat  and  the  Reichstag  merely 
for  their  information. 

ART.  72.  For  the  purpose  of  discharge  an  annual  report 
of  the  expenditure  of  all  the  revenues  of  the  Empire  shall  be 
presented,  through  the  Imperial  Chancellor,  to  the  Bundesrat 
and  the  Reichstag,  for  their  approval. 

ART.  73.    In  cases  of  extraordinary  need,  a  loan  may  be 

i  As  amended  May  14,  1904. 


CONSTITUTION   OF  THE   GEEMAN   EMPIRE  357 

contracted,  or  a  guaranty  assumed  as  a  charge  upon  the  Empire, 
by  means  of  imperial  legislation. 

Final  Provision  of  Section  XII 

Arts.  69  and  71  shall  apply  to  expenditures  for  the  Bavarian 
army  only  according  to  the  provisions  of  the  treaty  of  November 
23,  1870,  mentioned  in  the  final  provision  of  Section  XI ;  and 
Art.  72  applies  only  to  the  extent  that  the  Bundesrat  and 
the  Reichstag  shall  be  informed  that  the  sum  necessary  for  the 
Bavarian  army  has  been  assigned  to  Bavaria. 

XIII.   Settlement  of  Disputes  and  Penal  Provisions 

ART.  74.  Every  attempt  against  the  existence,  the  integ- 
rity, the  security,  or  the  constitution  of  the  German  Empire ; 
finally,  any  offense  committed  against  the  Bundesrat,  Reichstag, 
a  member  of  the  Bundesrat  or  of  the  Reichstag,  an  authority 
or  a  public-  officer  of  the  Empire,  while  in  the  execution  of 
their  duty,  or  with  reference  to  their  official  position,  by  word, 
writing,  printing,  drawing,  pictorial  or  other  representations, 
shall  be  judged  and  punished  in  the  several  states  of  the  Empire 
in  accordance  with  the  laws  therein  existing  or  which  may 
hereafter  be  enacted,  by  which  provision  is  made  for  the  trial 
of  similar  offenses  against  any  one  of  the  states  of  the  Empire, 
its  constitution,  legislature,  or  estates,  the  members  of  its 
legislature  or  its  estates,  authorities,  or  officers. 

ART.  75.  For  those  offenses  against  the  German  Empire, 
specified  in  Art.  74,  which,  if  committed  against  one  of  the 
states  of  the  Empire,  would  be  considered  high  treason,  the 
Superior  Court  of  Appeals  of  the  three  free  Hanse  cities,  at 
Liibeck,  shall  be  the  competent  deciding  tribunal  in  the  first  and 
last  resort. 

More  definite  provisions  as  to  the  competency  and  the  pro- 
cedure of  the  Superior  Court  of  Appeals  shall  be  made  by 
imperial  legislation.  Until  the  passage  of  an  imperial  law,  the 
existing  jurisdiction  of  the  courts  in  the  respective  states, 
and  the  provisions  relative  to  the  procedure  of  these  courts, 
shall  remain  as  at  present. 

ART.  76.  Disputes  between  the  several  states  of  the  Union,  so 
far  as  they  do  not  relate  to  matters  of  private  law,  and  are  there- 
fore to  be  decided  by  the  competent  judicial  authorities,  shall  be 
adjusted  by  the  Bundesrat,  at  the  request  of  one  of  the  parties. 


358  APPENDIX 

In  disputes  relating  to  constitutional  matters  in  those  states 
of  the  Union  whose  constitution  does  not  designate  an  authority 
for  the  settlement  of  such  differences,  the  Bundesrat  shall,  at 
the  request  of  oj*e  of  the  parties,  effect  an  amicable  adjustment, 
and  if  this  cannot  be  done,  the  matter  shall  be  settled  by  im- 
perial law. 

ART.  77.  If  justice  is  denied  in  one  of  the  states  of  the 
Union,  and  sufficient  relief  cannot  be  procured  by  legal  measures, 
it  shall  be  the  duty  of  the  Bundesrat  to  receive  substantiated 
complaints  concerning  denial  or  restriction  of  justice,  which 
shall  be  proven  according  to  the  constitution  and  the  existing 
laws  of  the  respective  states  of  the  Union,  and  thereupon  to 
obtain  judicial  relief  from  the  state  government  which  shall  have 
given  occasion  to  the  complaint. 

XIV.   Amendments 

ART.  78.  Amendments  of  the  constitution  shall  be  made 
by  legislative  enactment.  They  shall  be  considered  as  rejected 
when  fourteen  votes  are  cast  against  them  in  the  Bundesrat. 

The  provisions  of  the  constitution  of  the  Empire,  by  which 
certain  rights  are  secured  to  particular  states  of  the  Union  in 
their  relation  to  the  whole,  may  be  amended  only  with  the  con- 
sent of  the  states  affected. 


C.   UNITED  STATES 

THE  CONSTITUTION  OF  THE  UNITED  STATES 

(September  17,  1787 ») 

WE,  the  people  of  the  United  States,  in  order  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic  tranquillity, 
provide  for  the  common  defence,  promote  the  general  welfare, 
and  secure  the  blessings  of  liberty  to  ourselves  and  our  posterity, 
do  ordain  and  establish  this  Constitution  for  the  United  States 
of  America. 

Article  I 

SECTION  1.  All  legislative  powers  herein  granted  shall  be 
vested  in  a  Congress  of  the  United  States,  which  shall  consist 
of  a  Senate  and  a  House  of  Representatives. 

SEC.  2.  The  House  of  Representatives  shall  be  composed 
of  members  chosen  every  second  year  by  the  people  of  the 
several  States,  and  the  electors  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  State  Legislature. 

No  person  shall  be  a  Representative  who  shall  not  have 
attained  to  the  age  of  twenty-five  years,  and  been  seven  years 
a  citizen  of  the  United  States,  and  who  shall  not,  when  elected, 
be  an  inhabitant  of  that  State  in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  apportioned  among 
the  several  States  which  may  be  included  within  this  Union, 
according  to  their  respective  numbers,  which  shall  be  deter- 
mined by  adding  to  the  whole  number  of  free  persons,  including 
those  bound  to  service  for  a  term  of  years,  and  excluding 
Indians  not  taxed,  three-fifths  of  all  other  persons.2  The 
actual  enumeration  shall  be  made  within  three  years  after  the 
first  meeting  of  the  Congress  of  the  United  States,  and  within 

1  This  is  the  date  upon  which  the  constitution  was  agreed  upon  by  the  con- 
stitutional convention ;   according  to  the  terms  of  the  constitution  it  became 
effective  on  June  21,  1788,  after  ratification  by  nine  states.     The  date  set  by 
Congress  for  proceedings  to  begin  under  the  constitution  was  March  4,  1789, 
but  the  government  was  actually  not  organized  until  April  of  that  year. 

2  Amended  by  the  second  section  of  the  fourteenth  amendment,  p.  373. 

359 


360  APPENDIX 

every  subsequent  term  of  ten  years,  in  such  manner  as  they 
shall  by  law  direct.  The  number  of  Representatives  shall  not 
exceed  one  for  every  thirty  thousand,  but  each  State  shall  have 
at  least  one  representative ;  and  until  such  enumeration  shall 
be  made,  the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five,  New  York  six,  New  Jersey 
four,  Pennsylvania  eight,  Delaware  one,  Maryland  six,  Virginia 
ten,  North  Carolina  five,  South  Carolina  five,  and  Georgia 
three.1 

When  vacancies  happen  in  the  representation  from  any 
State,  the  Executive  authority  thereof  shall  issue  writs  of 
election  to  fill  such  vacancies. 

The  House  of  Representatives  shall  choose  their  Speaker 
and  other  officers ;  and  shall  have  the  sole  power  of  impeach- 
ment. 

SEC.  3.  The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  Legislature 
thereof,  for  six  years ;  and  each  Senator  shall  have  one  vote. 

Immediately  after  they  shall  be  assembled  in  consequence 
of  the  first  election,  they  shall  be  divided  as  equally  as  may  be 
into  three  classes.  The  seats  of  the  Senators  of  the  first  class 
shall  be  vacated  at  the  expiration  of  the  second  year,  of  the 
second  class  at  the  expiration  of  the  fourth  year,  and  of  the  third 
class  at  the  expiration  of  the  sixth  year,  so  that  one-third  may 
be  chosen  every  second  year ;  and  if  vacancies  happen  by  resig- 
nation, or  otherwise,  during  the  recess  of  the  Legislature  of  any 
State,  the  Executive  thereof  may  make  temporary  appoint- 
ments until  the  next  meeting  of  the  Legislature,  which  shall 
then  fill  such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have  attained 
to  the  age  of  thirty  years,  and  been  nine  years  a  citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an  inhabitant 
of  that  State  for  which  he  shall  be  chosen. 

The  Vice  President  of  the  United  States  shall  be  President  of 
the  Senate,  but  shall  have  no  vote,  unless  they  be  equally 
divided. 

The  Senate  shall  choose  their  other  officers,  and  also  a  Presi- 
dent pro  tempore,  in  the  absence  of  the  Vice  President,  or  when 
he  shall  exercise  the  office  of  President  of  the  United  States. 

1  According  to  the  present  apportionment,  based  on  the  1910  census,  there 
are  now  435  members  of  the  House  of  Representatives,  there  being  approxi- 
mately one  member  to  212,000  people.  L.  H.  H. 


CONSTITUTION  OF  THE   UNITED   STATES  361 

The  Senate  shall  have  the  sole  power  to  try  all  impeachments. 
When  sitting  for  that  purpose,  they  shall  be  on  oath  or  affirma- 
tion. When  the  President  of  the  United  States  is  tried,  the 
Chief  Justice  shall  preside :  and  no  person  shall  be  convicted 
without  the  concurrence  of  two-thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend  further 
than  to  removal  from  office,  and  disqualification  to  hold  and 
enjoy  any  office  of  honor,  trust,  or  profit  under  the  United 
States  :  but  the  party  convicted  shall  nevertheless  be  liable  and 
subject  to  indictment,  trial,  judgment,  and  punishment,  accord- 
ing to  law. 

SEC.  4.  The  times,  places,  and  manner  of  holding  elections 
for  Senators  and  Representatives,  shall  be  prescribed  in  each 
State  by  the  Legislature  thereof ;  but  the  Congress  may  at  any 
time  by  law  make  or  alter  such  regulations,  except  as  to  the 
places  of  choosing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every  year, 
and  such  meeting  shall  be  on  the  first  Monday  in  December, 
unless  they  shall  by  law  appoint  a  different  day. 

SEC.  5.  Each  House  shall  be  the  judge  of  the  elections, 
returns,  and  qualifications  of  its  own  members,  and  a  majority 
of  each  shall  constitute  a  quorum  to  do  business ;  but  a  smaller 
number  may  adjourn  from  day  to  day,  and  may  be  authorized 
to  compel  the  attendance  of  absent  members,  in  such  manner, 
and  under  such  penalties  as  each  House  may  provide. 

Each  House  may  determine  the  rules  of  its  proceedings,  punish 
its  members  for  disorderly  behavior,  and,  with  the  concur- 
rence of  two-thirds,  expel  a  member. 

Each  House  shall  keep  a  journal  of  its  proceedings,  and  from 
time  to  time  publish  the  same,  excepting  such  parts  as  may  in 
their  judgment  require  secrecy ;  and  the  yeas  and  nays  of  the 
members  of  either  House  on  any  question  shall,  at  the  desire 
of  one-fifth  of  those  present,  be  entered  on  the  journal. 

Neither  House,  during  the  session  of  Congress,  shall,  without 
the  consent  of  the  other,  adjourn  for  more  than  three  days,  nor  to 
any  other  place  than  that  in  which  the  two  Houses  shall  be 
sitting. 

SEC.  6.  The  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by  law,  and 
paid  out  of  the  Treasury  of  the  United  States.  They  shall  in  all 
cases,  except  treason,  felony,  and  breach  of  peace,  be  privileged 
from  arrest  during  their  attendance  at  the  session  of  their 
respective  Houses,  and  in  going  to  and  returning  from  the  same ; 


362  APPENDIX 

and  for  any  speech  or  debate  in  either  House,  they  shall  not 
be  questioned  in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time  for  which 
he  was  elected,  be  appointed  to  any  civil  office  under  the  author- 
ity of  the  United  States,  which  shall  have  been  created,  or  the 
emoluments  whereof  shall  have  been  increased  during  such  time  ; 
and  no  person  holding  any  office  under  the  United  States,  shall 
be  a  member  of  either  House  during  his  continuance  in  office. 

SEC.  7.  All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives;  but  the  Senate  may  propose  or 
concur  with  amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of  Represen- 
tatives and  the  Senate,  shall,  before  it  become  a  law,  be  presented 
to  the  President  of  the  United  States ;  if  he  approve  he  shall 
sign  it,  but  if  not  he  shall  return  it,  with  his  objections,  to  that 
House  in  which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  journal,  and  proceed  to  reconsider  it. 
If  after  such  reconsideration  two-thirds  of  that  House  shall 
agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objec- 
tions, to  the  other  House,  by  which  it  shall  likewise  be  recon- 
sidered, and,  if  approved  by  two-thirds  of  that  House,  it  shall 
become  a  law.  But  in  all  such  cases  the  votes  of  both  Houses 
shall  be  determined  by  yeas  and  nays,  and  the  names  of  the 
persons  voting  for  and  against  the  bill  shall  be  entered  on  the 
journal  of  each  House  respectively.  If  any  bill  shall  not  be 
returned  by  the  President  within  ten  days  (Sundays  excepted) 
after  it  shall  have  been  presented  to  him,  the  same  shall  be  a 
law,  in  like  manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case  it  shall 
not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  concurrence  of 
the  Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  adjournment)  shall  be  presented  to 
the  President  of  the  United  States ;  and  before  the  same  shall 
take  effect,  shall  be  approved  by  him,  or  being  disapproved  by 
him,  shall  be  repassed  by  two-thirds  of  the  Senate  and  House 
of  Representatives,  according  to  the  rules  and  limitations  pre- 
scribed in  the  case  of  a  bill. 

SEC.  8.  The  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts  and  provide 
for  the  common  defence  and  general  welfare  of  the  United 
States ;  but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States ; 


CONSTITUTION   OF   THE    UNITED    STATES  363 

To  borrow  money  on  the  credit  of  the  United  States ; 

To  regulate  commerce  with  foreign  nations,  and  among  the 
several  States,  and  with  the  Indian  tribes  ; 

To  establish  an  uniform  rule  of  naturalization,  and  uniform 
laws  on  the  subject  of  bankruptcies  throughout  the  United 
States ; 

To  coin  money,  regulate  the  value  thereof,  and  of  foreign 
coin,  and  fix  the  standard  of  weights  and  measures ; 

To  provide  for  the  punishment  of  counterfeiting  the  securities 
and  current  coin  of  the  United  States ; 

To  establish  post-offices  and  post-roads ; 

To  promote  the  progress  of  science  and  useful  arts,  by  securing 
for  limited  times  to  authors  and  inventors  the  exclusive  right 
to  their  respective  writings  and  discoveries ; 

To  constitute  tribunals  inferior  to  the  Supreme  Court  ; 

To  define  and  punish  piracies  and  felonies  committed  on 
the  high  seas,  and  offences  against  the  law  of  nations ; 

To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules'concerning  captures  on  land  and  water ; 

To  raise  and  support  armies,  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years ; 

To  provide  and  maintain  a  navy ; 

To  make  rules  for  the  government  and  regulation  of  the 
land  and  naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute  the  laws 
of  the  Union,  suppress  insurrections  and  repel  invasions ; 

To  provide  for  organizing,  arming,  and  disciplining  the  militia, 
and  for  governing  such  part  of  them  as  may  be  employed  in 
the  service  of  the  United  States,  reserving  to  the  States,  respec- 
tively, the  appointment  of  the  officers,  and  the  authority  of  train- 
ing the  militia  according  to  the  discipline  prescribed  by  Congress ; 

To  exercise  exclusive  legislation  in  all  cases  whatsoever,  over 
such  district  (not  exceeding  ten  miles  square)  as  may,  by  ces- 
sion of  particular  States,  and  the  acceptance  of  Congress, 
become  the  seat  of  the  government  of  the  United  States,  and 
to  exercise  like  authority  over  all  places  purchased  by  the  con- 
sent of  the  Legislature  of  the  State  in  which  the  same  shall 
be,  for  the  erection  of  forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings ;  —  and 

To  make  all  laws  which  shall  be  necessary  and  proper  for 
carrying  into  execution  the  foregoing  powers,  and  all  other 
powers  vested  by  this  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof. 


364  APPENDIX 

SEC.  9.  The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to  admit, 
shall  not  be  prohibited  by  the  Congress  prior  to  the  year  one 
thousand  eight  hundred  and  eight,  but  a  tax  or  duty  may  be 
imposed  on  such  importation,  not  exceeding  ten  dollars  for 
each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  sus- 
pended, unless  when  in  cases  of  rebellion  or  invasion  the  public 
safety  may  require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be  passed. 

No  capitation,  or  other  direct  tax  shall  be  laid,  unless  in  pro- 
portion to  the  census  or  enumeration  hereinbefore  directed 
to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported  from  any 
State. 

No  preference  shall  be  given  by  any  regulation  of  commerce 
or  revenue  to  the  ports  of  one  State  over  those  of  another : 
nor  shall  vessels  bound  to,  or  from,  one  State,  be  obliged  to 
enter,  clear,  or  pay  duties  in  another. 

No  money  shall  be  drawn  from  the  treasury,  but  in  conse- 
quence of  appropriations  made  by  law;  and  a  regular  state- 
ment and  account  of  the  receipts  and  expenditures  of  all  public 
money  shall  be  published  from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United  States : 
and  no  person  holding  any  office  of  profit  or  trust  under  them 
shall,  without  the  consent  of  the  Congress,  accept  of  any  present, 
emolument,  office,  or  title,  of  any  kind  whatever,  from  any  king, 
prince,  or  foreign  state. 

SEC.  10.  No  State  shall  enter  into  any  treaty,  alliance, 
or  confederation;  grant  letters  of  marque  and  reprisal;  coin 
money;  emit  bills  of  credit;  make  anything  but  gold  and 
silver  coin  a  tender  in  payment  of  debts ;  pass  any  bill  of  at- 
tainder, ex  post  facto  law,  or  law  impairing  the  obligation  of 
contracts,  or  grant  any  title  of  nobility. 

No  State  shall,  without  the  consent  of  the  Congress,  lay  any 
imposts  or  duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspection  laws;  and 
the  net  produce  of  all  duties  and  imposts,  laid  by  any  State  on 
imports  or  exports,  shall  be  for  the  use  of  the  treasury  of  the 
United  States ;  and  all  such  laws  shall  be  subject  to  the  revision 
and  control  of  the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay  any  duty 
of  tonnage,  keep  troops,  or  ships  of  war  in  time  of  peace,  enter 


CONSTITUTION   OF  THE   UNITED   STATES  365 

into  any  agreement  or  compact  with  another  State,  or  with  a 
foreign  power,  or  engage  in  war,  unless  actually  invaded,  or  in 
such  imminent  danger  as  will  not  admit  of  delay. 

Article  II 

SECTION  1.  The  executive  power  shall  be  vested  in  a  Presi- 
dent of  the  United  States  of  America.  He  shall  hold  his  office 
during  the  term  of  four  years,  and,  together  with  the  Vice 
President,  chosen  for  the  same  term,  be  elected  as  follows  : 

Each  State  shall  appoint,  in  such  manner  as  the  Legislature 
thereof  may  direct,  a  number  of  Electors  equal  to  the  whole 
number  of  Senators  and  Representatives  to  which  the  State  may 
be  entitled  in  the  Congress  :  but  no  Senator  or  Representative, 
or  person  holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

The  Electors  shall  meet  in  their  respective  States,  and  vote 
by  ballot  for  two  persons,  of  whom  one  at  least  shall  not  be  an 
inhabitant  of  the  same  State  with  themselves.  And  they  shall 
make  a  list  of  all  the  persons  voted  for,  and  of  the  number  of 
votes  for  each ;  which  list  they  shall  sign  and  certify,  and  trans- 
mit sealed  to  the  seat  of  the  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President  of  the 
Senate  shall,  in  the  presence  of  the  Senate  and  House  of  Repre- 
sentatives, open  all  the  certificates,  and  the  votes  shall  then 
be  counted.  The  person  having  the  greatest  number  of  votes 
shall  be  the  President,  if  such  number  be  a  majority  of  the 
whole  number  of  Electors  appointed ;  and  if  there  be  more  than 
one  who  have  such  majority,  and  have  an  equal  number  of 
votes,  then  the  House  of  Representatives  shall  immediately 
choose  by  ballot  one  of  them  for  President ;  and  if  no  person 
have  a  majority,  then  from  the  five  highest  on  the  list  the  said 
House  shall  in  like  manner  choose  the  President.  But  in  choos- 
ing the  President,  the  votes  shall  be  taken  by  States,  the  rep- 
resentation from  each  State  having  one  vote;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members  from  two- 
thirds  of  the  States,  and  a  majority  of  all  the  States  shall  be 
necessary  to  a  choice.  In  every  case,  after  the  choice  of  the 
President,  the  person  having  the  greatest  number  of  votes  of 
the  Electors  shall  be  the  Vice  President.  But  if  there  should 
remain  two  or  more  who  have  equal  votes,  the  Senate  shall 
choose  from  them  by  ballot  the  Vice  President.1 

1  This  clause  has  been  superseded  by  the  twelfth  amendment,  p.  372. 


366  APPENDIX 

The  Congress  may  determine  the  time  of  choosing  the 
Electors,  and  the  day  on  which  they  shall  give  their  votes; 
which  day  shall  be  the  same  throughout  the  United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen  of  the 
United  States  at  the  time  of  the  adoption  of  this  Constitution, 
shall  be  eligible  to  the  office  of  President ;  neither  shall  any  per- 
son be  eligible  to  that  office  who  shall  not  have  attained  to 
the  age  of  thirty-five  years,  and  been  fourteen  years  a  resident 
within  the  United  States. 

In  case  of  the  removal  of  the  President  from  office,  or  of  his 
death,  resignation,  or  inability  to  discharge  the  powers  and 
duties  of  the  said  office,  the  same  shall  devolve  on  the  Vice 
President,  and  the  Congress  may  by  law  provide  for  the  case 
of  removal,  death,  resignation,  or  inability,  both  of  the  Presi- 
dent and  Vice  President,  declaring  what  officer  shall  then  act 
as  President,  and  such  officer  shall  act  accordingly,  until  the 
disability  be  removed,  or  a  President  shall  be  elected. 

The  President  shall,  at  stated  times,  receive  for  his  services 
a  compensation,  which  shall  neither  be  increased  nor  diminished 
during  the  period  for  which  he  shall  have  been  elected,  and  he 
shall  not  receive  within  that  period  any  other  emolument  from 
the  United  States,  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office,  he  shall  take 
the  following  oath  or  affirmation :  —  "I  do  solemnly  swear  (or 
affirm)  that  I  will  faithfully  execute  the  office  of  President  of 
the  United  States,  and  will  to  the  best  of  my  ability,  preserve, 
protect,  and  defend  the  Constitution  of  the  United  States." 

SEC.  2.  The  President  shall  be  commander  in  chief  of  the 
army  and  navy  of  the  United  States,  and  of  the  militia  of  the 
several  States,  when  called  into  the  actual  service  of  the  United 
States ;  he  may  require  the  opinion,  in  writing,  of  the  principal 
officer  in  each  of  the  executive  departments,  upon  any  subject 
relating  to  the  duties  of  their  respective  offices,  and  he  shall 
have  power  to  grant  reprieves  and  pardons  for  offences  against 
the  United  States,  except  in  cases  of  impeachment. 

He  shall  have  power,  by  and  with  the  advice  and  consent 
of  the  Senate,  to  make  treaties,  provided  two-thirds  of  the 
Senators  present  concur;  and  he  shall  nominate,  and  by  and 
with  the  advice  and  consent  of  the  Senate,  shall  appoint  am- 
bassadors, other  public  ministers  and  consuls,  judges  of  the 
Supreme  Court,  and  all  other  officers  of  the  United  States, 
whose  appointments  are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law;  but  the  Congress  may  by 


CONSTITUTION   OF  THE   UNITED  STATES  367 

law  vest  the  appointment  of  such  inferior  officers,  as  they 
think  proper,  in  the  President  alone,  in  the  courts  of  law,  or 
in  the  heads  of  departments. 

The  President  shall  have  power  to  fill  up  all  vacancies  that 
may  happen  during  the  recess  of  the  Senate,  by  granting  com- 
missions which  shall  expire  at  the  end  of  their  next  session. 

SEC.  3.  He  shall  from  time  to  time  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend  to  their 
consideration  such  measures  as  he  shall  judge  necessary  and 
expedient;  he  may,  on  extraordinary  occasions,  convene  both 
Houses,  or  either  of  them,  and  in  case  of  disagreement  between 
them,  with  respect  to  the  time  of  adjournment,  he  may  adjourn 
them  to  such  time  as  he  shall  think  proper;  he  shall  receive 
ambassadors  and  other  public  ministers;  he  shall  take  care 
that  the  laws  be  faithfully  executed,  and  shall  commission  all 
the  officers  of  the  United  States. 

SEC.  4.  The  President,  Vice  President,  and  all  civil  officers 
of  the  United  States,  shall  be  removed  from  office  on  impeach- 
ment for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors. 

Article  III 

SECTION  1.  The  judicial  power  of  the  United  States  shall 
be  vested  in  one  Supreme  Court,  and  in  such  inferior  courts  as 
the  Congress  may  from  time  to  time  ordain  and  establish. 
The  judges,  both  of  the  Supreme  and  inferior  courts,  shall  hold 
their  offices  during  good  behavior,  and  shall,  at  stated  times, 
receive  for  their  services  a  compensation,  which  shall  not  be 
diminished  during  their  continuance  in  office. 

SEC.  2.  The  judicial  power  shall  extend  to  all  cases,  in 
law  and  equity,  arising  under  this  Constitution,  the  laws  of  the 
United  States,  and  treaties  made,  or  which  shall  be  made,  under 
their  authority ;  to  all  cases  affecting  ambassadors,  other  public 
ministers  and  consuls;  to  all  cases  of  admiralty  and  maritime 
jurisdiction ;  to  controversies  to  which  the  United  States  shall 
be  a  party;  to  controversies  between  two  or  more  States, 
between  a  State  and  citizens  of  another  State,  between  citizens 
of  different  States,  between  citizens  of  the  same  State  claiming 
lands  under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  ministers 
and  consuls,  and  those  in  which  a  State  shall  be  party,  the 


368  APPENDIX 

Supreme  Court  shall  have  original  jurisdiction.  In  all  the 
other  cases  before  mentioned,  the  Supreme  Court  shall  have 
appellate  jurisdiction,  both  as  to  law  and  fact,  with  such  excep- 
tions, and  under  such  regulations,  as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeachment,  shall 
be  by  jury ;  and  such  trial  shall  be  held  in  the  State  where  the 
said  crimes  shall  have  been  committed ;  but  when  not  com- 
mitted within  any  State,  the  trial  shall  be  at  such  place  or  places 
as  the  Congress  may  by  law  have  directed. 

SEC.  3.  Treason  against  the  United  States  shall  consist 
only  in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person  shall  be 
convicted  of  treason  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  open  court. 

The  Congress  shall  have  power  to  declare  the  punishment 
of  treason,  but  no  attainder  of  treason  shall  work  corruption  of 
blood,  or  forfeiture  except  during  the  life  of  the  person  attainted. 

Article  IV 

SECTION  1.  Full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State.  And  the  Congress  may  by  general  laws 
prescribe  the  manner  in  which  such  acts,  records,  and  proceed- 
ings shall  be  proved,  and  the  effect  thereof. 

SEC.  2.  The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several  States. 

A  person  charged  in  any  State  with  treason,  felony,  or 
other  crime,  who  shall  flee  from  justice,  and  be  found  in  an- 
other State,  shall  on  demand  of  the  executive  authority  of  the 
State  from  which  he  fled,  be  delivered  up  to  be  removed  to  the 
State  having  jurisdiction  of  the  crime. 

No  person  held  to  service  or  labor  in  one  State,  under  the 
laws  thereof,  escaping  into  another,  shall,  in  consequence  of 
any  law  or  regulation  therein,  be  discharged  from  such  service 
or  labor,  but  shall  be  delivered  up  on  claim  of  the  party  to 
whom  such  service  or  labor  may  be  due. 

SEC.  3.  New  States  may  be  admitted  by  the  Congress  into 
this  Union ;  but  no  new  State  shall  be  formed  or  erected  within 
the  jurisdiction  of  any  other  State;  nor  any  State  be  formed 
by  the  junction  of  two  or  more  States,  or  parts  of  States,  without 
the  consent  of  the  Legislatures  of  the  States  concerned  as  well 
as  of  the  Congress. 


CONSTITUTION  OF  THE  UNITED  STATES  369 

The  Congress  shall  have  power  to  dispose  of  and  make  all 
needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States ;  and  nothing  hi  this 
Constitution  shall  be  so  construed  as  to  prejudice  any  claims 
of  the  United  States,  or  of  any  particular  State. 

SEC.  4.  The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and  shall 
protect  each  of  them  against  invasion ;  and  on  application  of 
the  Legislature,  or  of  the  Executive  (when  the  Legislature 
cannot  be  convened)  against  domestic  violence. 

Article   V 

The  Congress,  whenever  two-thirds  of  both  houses  shall 
deem  it  necessary,  shall  propose  amendments  to  this  Constitu- 
tion, or,  on  the  application  of  the  Legislatures  of  two-thirds 
of  the  several  States,  shall  call  a  convention  for  proposing 
amendments,  which,  in  either  case,  shall  be  valid  to  all  intents 
and  purposes,  as  part  of  this  Constitution,  when  ratified  by 
the  Legislatures  of  three-fourths  of  the  several  States,  or  by 
conventions  hi  three-fourths  thereof,  as  the  one  or  the  other 
mode  of  ratification  may  be  proposed  by  the  Congress ;  pro- 
vided that  no  amendment  which  may  be  made  prior  to  the  year 
one  thousand  eight  hundred  and  eight  shall  in  any  manner 
affect  the  first  and  fourth  clauses  in  the  ninth  section  of  the 
first  article;  and  that  no  State,  without  its  consent,  shall  be 
deprived  of  its  equal  suffrage  in  the  Senate. 

Article  VI 

All  debts  contracted  and  engagements  entered  into,  before 
the  adoption  of  this  Constitution,  shall  be  as  valid  against  the 
United  States  under  this  Constitution,  as  under  the  Confedera- 
tion. 

This  Constitution,  and  the  laws  of  the  United  States  which 
shall  be  made  in  pursuance  thereof;  and  all  treaties  made,  or 
which  shall  be  made,  under  the  authority  of  the  United  States, 
shall  be  the  supreme  law  of  the  land ;  and  the  judges  in  every 
State  shall  be  bound  thereby,  anything  in  the  constitution  or 
laws  of  any  State  to  the  contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned,  and 
the  members  of  the  several  State  Legislatures,  and  all  executive 
and  judicial  officers,  both  of  the  United  States  and  of  the  several 
2* 


370  APPENDIX 

States,  shall  be  bound  by  oath  or  affirmation,  to  support  this 
Constitution ;  but  no  religious  test  shall  ever  be  required  as  a 
qualification  to  any  office  or  public  trust  under  the  United 
States. 

Article   VII 

The  ratification  of  the  conventions  of  nine  States,  shall  be 
sufficient  for  the  establishment  of  this  Constitution  between 
the  States  so  ratifying  the  same. 


ARTICLES  IN   ADDITION   TO,   AND    AMENDMENT    OF,   THE    CONSTI- 
TUTION  OF  THE   UNITED   STATES   OF  AMERICA 

Article  I 

Congress  shall  make  no  law  respecting  an  establishment  of 
religion,  or  prohibiting  the  free  exercise  thereof;  or  abridging 
the  freedom  of  speech,  or  of  the  press,  or  the  right  of  the  people 
peaceably  to  assemble,  and  to  petition  the  government  for  a 
redress  of  grievances.1 

Article  II 

A  well  regulated  militia  being  necessary  to  the  security  of 
a  free  state,  the  right  of  the  people  to  keep  and  bear  arms  shall 
not  be  infringed. 

Article  III 

No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner,  nor  hi  time  of  war,  but  in  a 
manner  to  be  prescribed  by  law. 

Article  IV 

The  right  of  the  people  to  be  secure  in  their  persons,  houses, 
papers,  and  effects,  against  unreasonable  searches  and  seizures, 
shall  not  be  violated,  and  no  warrants  shall  issue  but  upon 
probable  cause,  supported  by  oath  or  affirmation,  and  particu- 
larly describing  the  place  to  be  searched,  and  the  persons  or 
things  to  be  seized. 

1  The  first  ten  amendments  were  proposed  by  the  first  Congress,  on  Septem- 
ber 25,  1789,  and  were  ratified  by  three-fourths  of  the  States  during  the  two 
succeeding  years. 


CONSTITUTION   OF  THE   UNITED   STATES  371 


Article   V 

No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indictment  of 
a  grand  jury,  except  in  cases  arising  in  the  land  or  naval  forces, 
or  in  the  militia,  when  in  actual  service  in  time  of  war  or  public 
danger ;  nor  shall  any  person  be  subject,  for  the  same  offence  to 
be  twice  put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  nor  be 
deprived  of  life,  liberty,  or  property,  without  due  process  of 
law ;  nor  shall  private  property  be  taken  for  public  use  without 
just  compensation. 

Article   VI 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  to  a  speedy  and  public  trial,  by  an  impartial  jury  of  the 
State  and  district  wherein  the  crime  shall  have  been  committed, 
which  district  shall  have  been  previously  ascertained  by  law, 
and  to  be  informed  of  the  nature  and  cause  of  the  accusation ; 
to  be  confronted  with  the  witnesses  against  him ;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor,  and  to 
have  the  assistance  of  counsel  for  his  defence. 


Article   VII 

In  suits  at  common  law,  where  the  value  in  controversy 
shall  exceed  twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved,  and  no  fact  tried  by  a  jury  shall  be  otherwise  re- 
examined  in  any  court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. 


Article   VIII 

Excessive  bail  shall  not  be  required,  nor  excessive  fines 
imposed,  nor  cruel  and  unusual  punishments  inflicted. 

Article  IX 

The  enumeration  in  the  Constitution,  of  certain  rights, 
shall  not  be  construed  to  deny  or  disparage  others  retained  by 
the  people. 


372  APPENDIX 


Article  X 

The  powers  not  delegated  to  the  United  States  by  the  Con- 
stitution, nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States  respectively,  or  to  the  people. 

Article  XI 

The  judicial  power  of  the  United  States  shall  not  be  construed 
to  extend  to  any  suit  in  law  or  equity,  commenced  or  prosecuted 
against  one  of  the  United  States  by  citizens  of  another  State, 
or  by  citizens  or  subjects  of  any  foreign  state.1 

Article  XII 

The  Electors  shall  meet  in  their  respective  States,  and  vote 
by  ballot  for  President  and  Vice  President,  one  of  whom,  at 
least,  shall  not  be  an  inhabitant  of  the  same  State  with  them- 
selves; they  shall  name  in  their  ballots  the  person  voted  for 
as  President,  and  in  distinct  ballots  the  person  voted  for  as 
Vice  President ;  and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President,  and  of  all  persons  voted  for  as  Vice 
President,  and  of  the  number  of  votes  for  each,  which  lists 
they  shall  sign  and  certify,  and  transmit  sealed  to  the  seat  of 
the  government  of  the  United  States,  directed  to  the  President 
of  the  Senate ;  —  the  President  of  the  Senate  shall,  in  the 
presence  of  the  Senate  and  House  of  Representatives,  open  all 
the  certificates,  and  the  votes  shall  then  be  counted ;  —  the  per- 
son having  the  greatest  number  of  votes  for  President,  shall  be 
the  President,  if  such  number  be  a  majority  of  the  whole  num- 
ber of  Electors  appointed ;  and  if  no  person  have  such  majority, 
then  from  the  persons  having  the  highest  numbers  not  exceed- 
ing three  on  the  list  of  those  voted  for  as  President,  the  House 
of  Representatives  shall  choose  immediately,  by  ballot,  the 
President.  But  in  choosing  the  President,  the  votes  shall  be 
taken  by  States,  the  representation  from  each  State  having  one 
vote ;  a  quorum  for  this  purpose  shall  consist  of  a  member  or 
members  from  two-thirds  of  the  States,  and  a  majority  of  all 
the  States  shall  be  necessary  to  a  choice.  And  if  the  House  of 
Representatives  shall  not  choose  a  President  whenever  the  right 

1  The  eleventh  amendment  was  proposed  to  the  States  on  March  12,  1794, 
and  was  declared  adopted  on  January  8,  1708. 


CONSTITUTION   OF  THE   UNITED   STATES  373 

of  choice  shall  devolve  upon  them,  before  the  fourth  day  of 
March  next  following,  then  the  Vice  President  shall  act  as 
President,  as  in  the  case  of  the  death  or  other  constitutional 
disability  of  the  President.  The  person  having  the  greatest 
number  of  votes  as  Vice  President,  shall  be  the  Vice  President, 
if  such  number  be  a  majority  of  the  whole  number  of  Electors 
appointed,  and  if  no  person  have  a  majority,  then  from  the 
two  highest  numbers  on  the  list,  the  Senate  shall  choose  the 
Vice  President ;  a  quorum  for  the  purpose  shall  consist  of  two- 
thirds  of  the  whole  number  of  Senators,  and  a  majority  of  the 
whole  number  shall  be  necessary  to  a  choice.  But  no  person 
constitutionally  ineligible  to  the  office  of  President  shall  be 
eligible  to  that  of  Vice  President  of  the  United  States.1 

Article  XIII 

SECTION  1.  Neither  slavery  nor  involuntary  servitude, 
except  as  a  punishment  for  crime  whereof  the  party  shall  have 
been  duly  convicted,  shall  exist  within  the  United  States,  or 
any  place  subject  to  their  jurisdiction. 

SEC.  2.  Congress  shall  have  power  to  enforce  this  article 
by  appropriate  legislation.2 

Article  XIV 

SECTION  1.  All  persons  born  or  naturalized  in  the  United 
States,  and  subject  to  the  jurisdiction  thereof,  are  citizens  of 
the  United  States  and  of  the  State  wherein  they  reside.  No 
State  shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immunities  of  citizens  of  the  United  States ;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law ;  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

SEC.  2.  Representatives  shall  be  apportioned  among  the 
several  States  according  to  their  respective  numbers,  counting 
the  whole  number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election  for  the 
choice  of  Electors  for  President  and  Vice  President  of  the 
United  States,  Representatives  in  Congress,  the  executive  and 

1  The  twelfth  amendment  was  proposed  to  the  States  on  December  12,  1803, 
and  was  declared  adopted  on  September  25,  1804. 

2  The  thirteenth  amendment  was  proposed  on  February  1,  1865,  and  was 
declared  adopted  on  December  18,  1865. 


374  APPENDIX 

judicial  officers  of  a  State,  or  the  members  of  the  Legislature 
thereof,  is  denied  to  any  of  the  male  inhabitants  of  such  State, 
being  twenty-one  years  of  age,  and  citizens  of  the  United 
States,  or  in  any  way  abridged,  except  for  participation  in 
rebellion  or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male  citizens 
twenty-one  years  of  age  in  such  State. 

SEC.  3.  No  person  shall  be  a  Senator  or  Representative 
in  Congress,  or  Elector  of  President  and  Vice  President,  or 
hold  any  office,  civil  or  military,  under  the  United  States,  or 
under  any  State,  who,  having  previously  taken  an  oath,  as  a 
member  of  Congress,  or  as  an  officer  of  the  United  States,  or 
as  a  member  of  any  State  Legislature,  or  as  an  executive  or 
judicial  officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or  rebellion 
against  the  same,  or  given  aid  or  comfort  to  the  enemies  thereof. 
But  Congress  may,  by  a  vote  of  two-thirds  of  each  House, 
remove  such  disability. 

SEC.  4.  The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  payment  of 
pensions  and  bounties  for  services  in  suppressing  insurrection  or 
rebellion,  shall  not  be  questioned.  But  neither  the  United 
States  nor  any  State  shall  assume  or  pay  any  debt  or  obliga- 
tion incurred  in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipation  of  any 
slave ;  but  all  such  debts,  obligations,  and  claims  shall  be  held 
illegal  and  void. 

SEC.  5.  The  Congress  shall  have  power  to  enforce,  by 
appropriate  legislation,  the  provisions  of  this  article.1 

Article  XV 

SECTION  1.  The  right  of  citizens  of  the  United  States  to 
vote  shall  not  be  denied  or  abridged  by  the  United  States  or 
by  any  State  on  account  of  race,  color,  or  previous  condition 
of  servitude. 

SEC.  2.  The  Congress  shall  have  power  to  enforce  this 
article  by  appropriate  legislation.2 

1  The  fourteenth  amendment  was  proposed  to  the  states  on  June  16,  1866, 
and  was  declared  adopted  on  July  21,  1868. 

2  The  fifteenth  amendment  was  proposed  on  February  27,  1869,  and  was 
declared  adopted  on  March  30,  1870. 


CONSTITUTION  OF  THE   UNITED  STATES  375 


Article  XVI1 

The  Congress  shall  have  power  to  lay  and  collect  Taxes  on 
taxes  on  incomes,  from  whatever  source  derived, 
without  apportionment  among  the  several  States, 
and  without  regard  to  any  census  or  enumeration. 

Article  XVII2 

1.  The  Senate  of  the  United  States  shall  be  com-  Senators 
posed  of  two  Senators  from  each  State,  elected  by  the  ejected  by 
people  thereof,  for  six  years ;  and  each  Senator  shall  * 

have  one  vote.  The  electors  in  each  State  shall  have 
the  qualifications  requisite  for  electors  of  the  most 
numerous  branch  of  the  State  legislatures. 

2.  When  vacancies  happen  in  the  representation  of  Filling  of 
any  State  in  the  Senate,  the  executive  authority  of  vacancies, 
such  State  shall  issue  writs  of  election  to  fill  such 
vacancies :    Provided,  That  the  Legislature  of  any 

State  may  empower  the  executive  thereof  to  make  a 
temporary  appointment  until  the  people  fill  the  va- 
cancies by  election  as  the  Legislature  may  direct. 

3.  This  amendment  shall  not  be  construed  as  to 
affect  the  election  or  term  of  any  senator  chosen 
before  it  becomes  valid  as  part  of  the  Constitution. 

1  Declared  in  force  February  25,  1913. 

2  Declared  in  force  May  31,  1913. 


INDEX 


Accident  insurance  for  workingmen, 
292. 

Administrative  council,  in  Swiss  local 
government  system,  186. 

Administrative  courts,  system  of,  in 
European  states,  94-95. 

Administrative  district,  in  Prussian 
local  government  system,  191. 

Ad  valorem  duties,  277. 

Advisory  council  of  prefect,  in  French 
local  government  system,  179. 

Age  limitation  for  exercise  of  the 
suffrage,  115. 

Alaska,  area  and  population,  15 ; 
government  of,  as  a  dependency  of 
the  United  States,  227;  govern- 
ment-owned railroad  to,  288. 

Amendment  of  constitutions,  26  ff . ; 
constitutions  with  no  provision  for, 
26-27  ;  constitutions  denying  power 
of,  27 ;  provisions  for,  in  United 
States  constitution,  27-28 ;  relative 
ease  of,  of  constitutions  of  European 
states,  28 ;  criticism  of  provisions 
for,  in  United  States  constitution, 
28-29. 

American  Tobacco  Company,  dissolu- 
tion of,  by  government,  302. 

Appeal,  right  of,  from  decisions  of 
courts,  99-100. 

Appellate  courts,  100 ;  in  common- 
wealths of  United  States,  198. 

Appropriation  bills,  powers  of  legis- 
lative chambers  in  regard  to,  47-48  ; 
in  legislatures  of  commonwealths 
of  United  States,  196;  in  Europe 
and  in  United  States,  280^81. 

Area  of  leading  states,  statistics  of,  15. 

Argentine  Republic,  indirect  election 
of  executive  head  in,  10,  72 ;  table 
of  statistics  regarding  executive 
head  in,  80. 

Aristocratic  governments  (aristoc- 
racies) ,  5,  6-7 ;  examples  of,  7 ; 
shown  graphically,  16. 

Armaments,  increase  of,  necessitated 
by  acquisition  of  dependencies  by 
great  states,  230-231. 

Armies,  supreme  command  of,  vested 
in  executive  heads  of  states,  68-69, 
270 ;  maintenance  of,  as  a  function 


of  government,  268-269 ;  organi- 
zation of,  269 ;  legitimate  uses  of, 
269-270. 

Arrondissements  in  French  local  gov- 
ernment system,  178,  179. 

Art  galleries,  maintenance  of,  an  op- 
tional governmental  function,  290. 

Assembly,  governing  body  of  the  circle, 
in  Prussian  local  government  sys- 
tem, 191. 

Assessment  of  taxes,  methods  of,  279. 

Australasia,  an  example  of  self-govern- 
ing colony,  220. 

Australia,  use  of  referendum  in,  133  ; 
results  of  majority  system  of  election 
of  senators  in,  139 ;  state  insurance 
in,  293. 

Austria,  composition  of  upper  house  of 
legislature  of,  40-41 ;  power  of 
executive  head  in,  over  meeting  of 
legislative  body,  68 ;  income  tax  in, 
274  ;  trusts  in,  302. 

Autocratic  governments  (autocracies), 
5,  6 ;  examples  of,  6 ;  hereditary 
executive  head  a  survival  of,  9 ;  as 
examples  of  unitary  governments, 
11;  shown  graphically,  16  ;  political 
parties  not  permitted  in,  153. 

Banks,  functions  of,  and  importance 
of  service  rendered  to  communities 
by,  294-295  ;  governmental  regula- 
tion of  business  of,  295-298. 

Belgian  Congo,  as  an  example  of  direct 
dependency  operated  for  sole  ad- 
vantage of  its  ruler,  225. 

Belgium,  compulsory  voting  in,  122  ; 
weighted  voting  in,  122-123;  ex- 
tracts from  constitution  of,  to  show 
provisions  for  weighted  and  com- 
pulsory voting,  137-138. 

Bicameral  legislative  bodies,  39  ff. ; 
necessity  of  difference  in  composi- 
tion of  the  two  houses,  and  methods 
of  securing,  39-45 ;  advantages  and 
disadvantages  of,  45-46. 

Bill  of  Rights,  the  English,  22. 

Bills,  procedure  in  regard  to,  in  national 
legislatures,  49;  in  legislatures  of 
commonwealths  of  United  States, 
196. 


377 


378 


INDEX 


Boards,  system  of,  for  management  of 
city  departments  in  United  States, 
204. 

Borough,  significance  of  term  in  Eng- 
lish law,  182  n. 

Boroughs  in  English  local  government 
system,  181,  182,  183. 

Boss,  the  political,  165. 

Brazil,  direct  popular  election  of  exec- 
utive head  in,  9, 71 ;  table  of  statistics 
regarding  executive  head  in,  81. 

British  Empire,  area  and  population,  15. 

Bryce,  James,  on  rules  of  procedure  in 
American  House  of  Representatives, 
48-49. 

Budget  system  for  adjusting  revenue 
of  states  to  expenditure,  279-280. 

Bundesrath,  composition  of  the,  41, 
57 ;  provisions  in  German  consti- 
tution relative  to  the,  339-341. 

Bureaus,  governmental,  in  United 
States,  78.' 

Burgomaster,  office  of,  in  German 
cities,  192-193. 

Business,  governmental  regulation  of, 
300-302,  305. 

Cabinet,  English,  not  provided  for 
in  any  authoritative  written  docu- 
ment, 22  ;  intermingling  of  govern- 
mental powers  in,  35-36. 

Cabinet  system,  in  England,  74-75 ; 
in  France,  75-76;  in  Italy,  76; 
spread  of,  in  European  states,  77. 

Canada,  an  example  of  self-governing 
colony,  220. 

Cantons,  in  French  local  government 
system,  178,  179  ;  in  Swiss  local  gov- 
ernment system,  186. 

Chamber  of  Deputies,  French,  method 
of  election  to,  42. 

Charity,  public,  exercise  of,  an  op- 
tional function  of  government,  291- 
293. 

Charter  of  incorporation  of  cities  in 
United  States,  203. 

Child  labor,  governmental  restriction 
of,  303. 

Children's  courts,  198. 

Chile,  indirect  election  of  executive 
head  in,  10,  72 ;  tenure  of  office  of 
President,  73 ;  table  of  statistics 
regarding  executive  head  in,  82. 

Chinese,  exclusion  of,  from  the  United 
States,  116. 

Circle,  in  Prussian  local  government 
system,  191. 

Circondari,  in  Italian  local  government 
system,  181. 

Circuit  courts  in  commonwealths  of 
United  States,  198. 


Cities,  government  of,  in  Germany, 
192-193 ;  government  of,  in  United 
States,  202  ff. ;  evils  in  government 
of,  and  reform  methods,  205 ;  com- 
mission form  of  government  for, 
205-206,  208-215. 

Citizenship,  as  a  qualification  for  ex- 
ercise of  the  suffrage,  115 ;  problems 
connected  with  bestowal  of,  115-116. 

City,  use  of  word  in  English  law,  182  n. 

City  manager  plan  for  efficiency  in 
city  government,  206,  215. 

Civil  function  of  government,  281. 

Civil  law  and  courts,  93-94. 

Civil  service  system,  64. 

Classification  of  forms  of  government, 
4  ff . ;  diagram  showing  graphically, 
16. 

Coinage,  government  control  of  the, 
286. 

Colbert,    quoted   on   taxation,    271. 

Colonial  dependencies,  216-217;  gov- 
ernment in,  220-222. 

Colonies,  defined,  217;  self-governing, 
220. 

Commerce,  cases  concerning,  illustrat- 
ing judicial  control  over  congres- 
sional legislation  in  United  States, 
107-108;  text  of  decision  by  Su- 
preme Court  in  connection  with, 
108-112;  governmental  regulation 
of,  298-300. 

Commerce  Court,  United  States,  299. 

Commercial  agreements,  power  of 
executive  head  in  regard  to,  68. 

Commissioners  for  management  of  city 
departments,  204. 

Commission  form  of  government  for 
cities,  205-206,  208-215. 

Committees,  reference  of  bills  to,  in 
legislative  bodies,  49,  196. 

Commonwealth  courts  in  United 
States,  96-97. 

Commonwealths,  in  United  States, 
192-193  ;  constitutions  and  govern- 
ment of,  194-200;  subordinate 
areas  in,  and  relations  between 
commonwealths  and,  200. 

Communes,  in  French  local  govern- 
ment system,  178,  180;  in  Italian 
local  government  system,  181 ;  in 
Swiss  system,  187 ;  in  Prussian  sys- 
tem, 191,  192. 

Compulsory  voting,  121-122 ;  provi- 
sions for,  in  constitution  of  Belgium, 
137-138. 

Confederate  government,  distinction 
between  federal  government  and, 
12-13;  weakness  of,  13. 

Congo  Free  State,  exploitation  of,  by 
king  of  Belgium,  225. 


INDEX 


379 


Congress,  United  States,  mingling  of 
legislative  and  judicial  powers  in,  36  ; 
composition  of  two  houses  of,  43. 

Congressmen,  votes  for,  in  1912  in 
United  States,  140-141. 

Conservation  of  natural  resources  as  an 
optional  governmental  function,  289. 

Constitution,  definition  and  scope  of, 
20;  written  and  unwritten,  20-21; 
equal  authority  of  written  and  un- 
written, 21 ;  examples  of  written  and 
unwritten,  21-22 ;  advantages  and 
weaknesses  of  written  and  unwritten, 
23 ;  breadth,  brevity,  and  definite- 
ness  essential  requisites  of,  24  ;  clas- 
sification of  material  in  a,  24  ff . ; 
matter  in,  defining  rights  and  lib- 
erties of  individuals,  25-26  ;  matter 
outlining  the  organization  of  govern- 
ment, 26  ;  matter  relating  to  amend- 
ment, 26-29  ;  separation  of  govern- 
mental powers  in,  34-35. 

Constitution  of  German  Empire,  337- 
358. 

Constitution  of  United  States,  criti- 
cism of  amendment  provisions  in, 
28-29 ;  power  of  Supreme  Court  to 
interpret,  29-30 ;  power  given  by, 
in  regard  to  dependencies,  226 ; 
text  of,  359-375. 

Constitutional  laws  of  France,  323- 
336. 

Constitutions  of  commonwealths  in 
United  States,  194. 

Corn  laws,  English,  as  examples  of 
governmental  regulation  of  com- 
merce, 298-299. 

Corporations,  governmental  regula- 
tion of,  300-302. 

Corruption,  in  party  politics  in  United 
States,  165 ;  in  city  government  in 
United  States,  205. 

Councils,  in  French  local  government 
system,  179  ;  in  Italian  local  govern- 
ment, 181 ;  in  English  local  govern- 
ment system,  183-184 ;  in  Swiss 
local  government,  186-187 ;  city,  in 
United  States,  203-204. 

Councils  general  in  French  depend- 
encies, 223. 

Counties,  in  English  local  government 
system,  181,  182,  183;  in  United 
States,  200-201. 

County  boroughs  in  English  local 
government  system,  181,  182,  183. 

County  courts  in  United  States  com- 
monwealths, 198. 

Courts,  gradations  of,  91 ;  civil  and 
criminal,  93-94 ;  administrative,  in 
European  states,  94-95;  federal 
and  commonwealth,  in  United 


States,  96-97 ;  procedure  in,  98-;99 ; 
jurisdiction  of  the  various,  99 ;  right 
of  appeal  from  decisions  of,  99-100 ; 
appellate,  100 ;  penalties  and  pun- 
ishments inflicted  by,  100-101 ;  in 
commonwealths  of  United  States, 
197-198. 

Criminal  law  and  courts,  92-94. 

Criminals,  modern  method  of  treat- 
ment of,  100-101. 

Cuba,  question  of  location  of  sov- 
ereignty of,  18-19  ;  text  of  provisions 
added  to  constitution  by  Platt 
amendment,  31-32;  use  of  list 
system  of  proportional  representa- 
tion in,  127 ;  a  protectorate  of 
United  States,  229. 

Cumulative  vote  plan  of  minority 
representation,  130. 

Currency,  issue  of,  a  function  of  gov- 
ernment, 286. 

Customs  duty,  a  form  of  indirect  tax, 
274 ;  explanation  of,  277.  See 
Tariffs. 

Dayton,  Ohio,  city  manager  plan  in, 
206. 

Debate,  restriction  of,  in  legislative 
bodies,  50. 

Democratic  governments  (democra- 
cies) ,  5  ;  definition  of,  7  ;  direct  and 
representative,  7 ;  shown  graphi- 
cally, 16  ;  location  of  sovereignty  in 
various  types  of,  17—18 ;  political 
parties  developed  by,  153. 

Democratic  party  in  United  States, 
issue  leading  to  formation  of,  154. 

Denmark,  composition  of  upper  house 
of  legislature  of,  41 ;  use  of  Hare 
system  of  proportional  representa- 
tion in,  129 ;  income  tax  in,  274 ; 
state  insurance  in,  293. 

Departements,  administrative  divisions 
in  France,  42,  124,  178,  179. 

Department  heads,  in  different  govern- 
ments, 77-78 ;  method  of  selection 
and  character  of,  in  commonwealths 
of  United  States,  197. 

Departments,  governmental,  in  dif- 
ferent states,  77-78 ;  of  city  govern- 
ment in  United  States,  204. 

Dependencies,  definition  and  nature 
of,  216;  colonial,  216-217;  direct, 
217;  transitory  stages  in  progress 
toward,  in  spheres  of  influence  and 
protectorates,  218-219 ;  government 
in  colonial,  220-222  ;  government  in 
direct,  222-225;  of  United  States, 
226-229;  effects  of  acquisition  of, 
upon  great  states,  230-231 ;  results 
of,  in  broadening  of  views  and  deep- 


380 


INDEX 


ening  of  patriotism  among  people  of 
great  states,  232. 

Des  Moines,  commission  form  of  gov- 
ernment in,  206,  208-215. 

Despotisms.  See  Autocratic  govern- 
ments. 

Diagram  showing  classification  of 
governments,  16. 

Direct  democracies,  7. 

Direct  dependencies,  217  ;  government 
in,  222-225. 

Direct  election,  of  executive  head,  9-10, 
71 ;  of  members  of  upper  house  of 
national  legislatures,  42-43. 

Direct  legislation,  132-136.  See  Ini- 
tiative and  referendum. 

Direct  nominations,  system  of,  166. 

Direct  primaries,  166. 

Direct  tax,  defined,  273 ;  different 
forms  of,  274-277. 

District  attorney,  office  of,  in  common- 
wealths of  United  States,  199. 

District  council  in  arrondissements,  in 
French  local  government  system, 
179. 

Districts,  in  Swiss  local  government 
system,  187. 

Education,  public,  as  an  optional  func- 
tion of  government,  290-291. 

Election,  method  of,  for  selecting  exec- 
utive head,  71-72;  as  a  method 
of  selecting  judges,  89-90,  199; 
methods  of,  to  legislative  bodies, 
124  ff. ;  objections  to  majority 
method,  125;  statistics  showing 
injustice  of  election  by  majorities, 
138-141;  primary,  162-167;  lists 
of  primary,  held  in  1912,  174-175. 

Elective  executive  head  of  govern- 
ment, 8-10 ;  principles  governing 
election  of,  9-10 ;  arguments  for 
and  against,  10. 

Elective  governments,  5  ;  shown  graph- 
ically, 16. 

Electorate,  the,  defined,  114;  ratio  of, 
to  entire  population  in  modern 
states,  1 14 ;  qualifications  of,  1 14- 
121 ;  function  of,  to  vote,  121-123  ; 
appointive  powers  of  the,  123  ff . ; 
use  of  the  recall  by,  131-132 ;  use 
of  initiative  and  referendum  by,  132— 
136 ;  services  rendered  to  the,  by 
political  parties,  160-162;  need  of 
arousal  of,  to  a  sense  of  its  respon- 
sibilities, 167. 

England,  an  example  of  unitary  govern- 
ment, 1 1 ;  area  and  population,  15 ; 
location  of  sovereignty  in,  17  ;  con- 
stitution of,  an  example  of  an  un- 
written constitution,  22 ;  note- 


worthy elements  in  constitution  of, 
22-23 ;  intermingling  of  govern- 
mental powers  in  cabinet  and  in 
Parliament  of,  35-36 ;  powers  of 
legislative  houses  of,  concerning 
money  bills,  47 ;  composition  of 
upper  house  of  legislative  depart- 
ment in,  40,  53  ;  nominal  and  actual 
executive  heads  in,  63-64 ;  function 
of  ministry  in,  to  initiate  and  influ- 
ence legislation,  65;  veto  power  of 
executive  head  in,  67;  power  of 
executive  head  to  declare  war,  69 ; 
position  of  hereditary  monarch  in, 
70 ;  cabinet  system  in,  74-75  ;  min- 
isters in,  since  1880,  87 ;  civil  and 
criminal  courts  in,  94;  judicial  in- 
terpretation of  legislation  in,  97 ; 
qualifications  for  exercise  of  suffrage 
in,  114;  agitation  for  woman  suf- 
frage in,  119;  the  referendum  in, 
133 ;  political  party  system  in,  157, 
159-160 ;  local  government  system 
in,  181-185 ;  colonial  dependencies 
of,  220-222  ;  direct  dependencies  of, 
223-224;  income  tax  in,  274,  275; 
inheritance  tax  in,  275;  free  trade 
system  in,  278 ;  use  of  budget  sys- 
tem in,  280;  extract  from  Finance 
Act  of  1894  providing  for  inheritance 
tax  in,  282-284  ;  government  owner- 
ship of  public  utilities  in,  287,  288 ; 
governmental  regulation  of  banking 
in,  296,  297  ;  subsidies  to  steamship 
lines  in,  299-300;  old  age  pension 
law  in,  292,  306-309.  See  also 
Great  Britain. 

Excise  duties,  278-279. 

Executive  activities  of  government,  33. 

Executive  council  in  Swiss  local  govern- 
ment, 187. 

Executive  department  of  government, 
viewed  as  administrative  agent  of 
the  legislative,  62  ;  personnel  of  the, 
63 ;  headship  of,  vested  in  a  single 
person  in  majority  of  states,  63 ; 
organization  of,  77  ff . ;  division  and 
subdivision  of,  into  departments  and 
bureaus,  77-79 ;  appointive  power 
of  electorate  in  the,  123. 

Executive  head,  government  by  heredi- 
tary and  by  elective,  8-10 ;  nominal 
and  actual,  63-64,  74 ;  appointment 
of  assistants  to,  64 ;  responsibility 
of,  for  work  of  appointees,  64  ;  func- 
tions of,  distinct  from  those  as  agent 
for  legislative,  65  ff. ;  function  of 
recommending  legislation,  65  ;  veto 
power  of,  66-67,  196-197;  ordi- 
nance power  of,  for  effecting  opera- 
tion of  laws,  67 ;  power  of,  over 


INDEX 


381 


meeting  of  legislative  body,  67-68; 
power  in  international  relations,  68 ; 
power  to  command  military  forces 
of  state,  68-69,  270 ;  power  regard- 
ing declaration  of  war,  69,  270 ; 
pardoning  power,  69,  197 ;  methods 
of  selecting,  70  ff. ;  advantages  and 
disadvantages  of  election  of,  by 
legislature,  as  in  France,  72 ;  tenure 
of  office  of  elected,  73 ;  eligibility 
of,  for  reelection,  73-74  ;  division  of 
work  of,  among  department  heads, 
77-79 ;  tabular  presentation  of  de- 
tails concerning  elected,  in  different 
states,  80-87 ;  selection  of  judges 
by,  89-90,  199. 

Farming  out  of  taxes,  279. 

Federal  courts  in  United  States,  96-97. 

Federal  governments,  5,  11 ;  historical 
descent  of,  11-12;  distribution  of 
powers  in,  12 ;  distinction  between 
confederate  governments  and,  12- 
13 ;  points  of  weakness  in,  13-14 ; 
shown  graphically,  16 ;  unity  of 
sovereignty  in,  19-20. 

Federal  party  in  United  States,  issue 
leading  to  formation  of,  154. 

Federal  Reserve  Act  of  1914,  in  United 
States,  297-298. 

Federal  reserve  banks,  297-298. 

Federative  governments,  176-177  ;  lo- 
cal government  areas  in,  a  result  of 
historical  evolution,  177,  178 ;  rela- 
tions between  central  and  local 
governments  in,  185 ;  examples  of 
local  government  under,  in  Switzer- 
land, Germany,  and  United  States, 
193-206. 

Finance  Act,  in  England,  280 ;  extract 
from,  providing  for  inheritance  tax, 
282-284. 

Financial  functions  of  government, 
270-281,  286-287. 

Finland,  suffrage  held  by  women  in, 
119. 

Fiscal  monopolies,  defined,  300. 

Florence,  city-state  of,  an  example  of 
aristocratic  government,  7. 

Forests,  conservation  of,  by  United 
States  government,  289. 

France,  early  autocratic  government 
in,  6 ;  election  of  executive  head  by- 
National  Assembly  in,  10,  72 ;  uni- 
tary government  of,  a  descendant 
of  earlier  centralized  monarchy,  11 ; 
statistics  of  area  and  population,  15  ; 
location  of  sovereignty  in,  17 ; 
amendment  of  constitution  in,  28 ; 
methods  of  election  to  the  two 
houses  of  the  legislature  in,  42; 


tabular  presentation  of  details  con- 
cerning legislature  of,  54-55 ;  nomi- 
nal and  actual  executive  heads  in, 
63-64 ;  influence  of  executive  head 
on  legislation  in,  65 ;  scope  of  veto 
power  of  executive  head  in,  67 ; 
power  of  executive  head  in,  concern- 
ing meeting  of  legislative  body,  68 ; 
location  of  power  to  declare  war,  69 ; 
tenure  of  office  of  President,  73 ; 
reelection  of  Presidents,  74 ;  cabinet 
system  in,  75-76 ;  table  of  statistics 
regarding  executive  head  in,  83 ; 
table  of  ministers  in,  since  1880,  87 ; 
gradation  of  courts  in,  91-92 ;  civil 
and  criminal  courts  in,  94 ;  basis 
of  representation  in  lower  and  in 
upper  house  of  national  legislature, 
124 ;  agitation  for  initiative  and  ref- 
erendum in,  133  ;  qualifications  for 
exercise  of  suffrage  in,  114 ;  political 
parties  in,  168 ;  local  government 
areas  in,  178-181 ;  direct  dependen- 
cies of,  222-223  ;  income  tax  in,  274 ; 
poll  tax  imposed  in,  274 ;  state  in- 
surance in,  293  ;  governmental  regu- 
lation of  banking  in,  297;  fiscal 
monopolies  in,  300 ;  trusts  in,  302 ; 
text  of  constitutional  laws  of,  323- 
336. 

Free  list  system  of  proportional  rep- 
resentation, 126-127. 

Functions  of  government,  individualist, 
socialist,  and  general  welfare  theories 
of,  259-268;  classification  of,  as 
necessary  or  essential  and  optional 
or  unessential,  268 ;  necessary  func- 
tions, 268-281 ;  unnecessary  or  op- 
tional, 285-305. 

Galveston  plan  for  commission  form 
of  government  for  cities,  205-206. 

Gemeinde  in  Prussian  local  government 
system,  191,  192. 

General  council  in  French  local  govern- 
ment system,  179. 

General  welfare  theories  concerning 
functions  of  government,  266-267. 

German  Empire,  an  example  of  federal 
government,  11-12;  statistics  of 
area  and  population,  15 ;  amend- 
ment of  constitution  in,  28 ;  com- 
position of  upper  house  (Bundes- 
rath)  of  legislature  of,  41 ;  powers 
of  the  two  legislative  houses  of,  con- 
cerning money  bills,  47 ;  tabular 
presentation  of  details  concerning 
legislature  of,  56-57 ;  function  of 
executive  head  in,  to  initiate  legis- 
lation, 65 ;  veto  power  of  executive 
head  in,  66 ;  power  of  executive  head 


382 


INDEX 


in,  to  summon  and  adjourn  legis- 
lative body,  68 ;  location  of  power 
to  declare  war,  69  ;  position  of  hered- 
itary monarch  in,  70-71 ;  grada- 
tion of  courts  in,  91 ;  civil  and  crimi- 
nal courts  in,  94 ;  supremacy  of 
Emperor  and  legislature  in,  as  con- 
trasted with  position  of  Congress  in 
United  States  relative  to  Supreme 
Court,  98 ;  qualifications  for  exer- 
cise of  suffrage  in,  114;  political 
parties  in,  168 ;  system  of  local  gov- 
ernment in,  186, 188-193  ;  units  com- 
posing] Empire,  188 ;  extent  of  fed- 
eral supervision  of  local  government 
areas  in,  189 ;  city  government  in, 
192-193 ;  government  of  direct  de- 
pendencies by,  224-225 ;  govern- 
ment ownership  of  public  works  in, 
287,  288 ;  workingman's  insurance 
in,  292 ;  governmental  regulation  of 
banking  in,  297  ;  subsidies  to  steam- 
ship lines  in,  299-300;  trusts  in, 
302;  text  of  constitution  of,  337- 
358. 

Gladstone,  W.  E.,  quoted  on  United 
States  constitution,  21. 

Government,  defined,  1 ;  state  and, 
distinguished,  1-2 ;  different  kinds 
of,  2 ;  typical  forms  of,  found  in 
Europe  and  America,  2  ;  two  funda- 
mental reasons  for  existence  of,  3 ; 
general  world  uplift  an  additional 
reason  for,  4  ;  classification  of  forms 
of,  4  ff . ;  autocratic,  aristocratic, 
and  democratic  forms  of,  6-8 ;  classi- 
fication based  on  an  hereditary  and 
on  an  elective  executive  head,  8-10 ; 
unitary  and  federal  classification  of, 
11-14;  confederate,  12-13  ;  diagram 
showing  graphically  classification 
of,  16 ;  relation  of  sovereignty  to 
state  and,  25 ;  material  in  consti- 
tutions dealing  with  organization 
and  powers  of,  26 ;  organization  of, 
33  ff . ;  three  kinds  of  activities  of : 
legislative,  executive,  and  judicial, 
33  ;  separation  of  powers  of,  33-34  ; 
separation  of  powers  of,  in  constitu- 
tions, 34-35  ;  impossibility  of  strict 
separation  of  powers  of,  35 ;  ex- 
amples of  non-separation  of  powers 
of,  35-36  ;  legislative  department  of, 
38-61 ;  executive  department  of, 
62-87;  judicial  department  of,  88- 
112;  the  electorate  and  the,  113- 
151 ;  meaning  of  popular  govern- 
ment, 113  ;  local,  176-215  (see  Local 
government) ;  of  dependencies,  216- 
232 ;  different  theories  of  functions 
of,  259  ff. ;  individualist  theories, 


259-261 ;  socialist  theories,  262- 
266;  general  welfare  theories,  266- 
267  ;  two  classes  of  functions,  neces- 
sary and  optional,  268 ;  discussion 
of  necessary  functions,  268-281 ; 
unnecessary  or  optional  functions, 
285-305. 

Government  ownership,  socialistic 
theory  of,  262 ;  present  extent  of, 
286-290. 

Governor,  office  of,  in  commonwealths 
of  United  States,  194,  196-197; 
in  self-governing  colonies,  220-221 ; 
in  direct  dependencies,  223,  224. 

Graft  evil,  origins  of,  165. 

Great  Britain,  tables  giving  details  of 
legislative  department  of,  52-53 ; 
political  parties  in,  168.  See  England. 

Great  council  in  Swiss  cantonal 
government,  186-187. 

Greece,  city-states  of  ancient,  examples 
of  direct  democracies,  7. 

Guam,  area  and  population,  15. 

Guelphs  and  Ghibellines  in  medieval 
Florence,  7. 

Habeas  Corpus  Act,  the  English,  22. 

Hare  system  of  proportional  represen- 
tation, 127-129. 

Hawaii,  area  and  population,  15 ; 
government  of,  as  a  dependency  of 
United  States,  227. 

Hepburn  Act,  299. 

Hereditary  executive  head  of  govern- 
ment, 8-10,  70-71 ;  arguments  for 
and  against,  10. 

Hereditary  governments,  5 ;  shown 
graphically,  16. 

Hungary,  character  of  constitution  of, 
24 ;  composition  of  upper  house  of 
legislature,  40-41. 

Illinois,  use  of  cumulative  vote  plan 
in,  130. 

Income  taxation,  274-275. 

Incorporation  of  banks,  required  by 
government,  295-296. 

Independence,  implied  by  notion  of 
sovereignty,  18-19. 

India,  government  of,  223-224. 

Indirect  election,  of  members  of  upper 
house  of  national  legislatures,  42- 
43  ;  of  executive  head,  71-72  ;  three- 
class  system  of,  in  Prussia,  192,  193, 
207. 

Indirect  tax,  defined,  273-274 ;  differ- 
ent forms  of,  277-279. 

Individualist  theories  of  functions  of 
government,  259-261. 

Individuals,  material  in  a  constitution 
defining  rights  and  liberties  of,  25-26. 


INDEX 


383 


Industrial  regulation,  governmental, 
293-304. 

Inheritance  in  hereditary  governments, 
principles  governing,  9. 

Inheritance  tax,  275-276 ;  extract 
from  English  Finance  Act  of  1894, 
providing  for  the,  282-284. 

Initiative,  the,  denned,  133. 

Initiative  and  referendum,  states  in 
which  used,  133-134;  successful 
results  of,  in  Switzerland,  134 ;  con- 
ditions in  United  States  affecting 
operation  of,  134-135 ;  possible  ad- 
vantages of,  under  good  conditions, 
136;  examples  of  provisions  for,  in 
Switzerland  and  in  Oregon,  142-145  ; 
statistics  on  use  of,  in  Oregon,  145- 
147 ;  use  of,  in  local  matters,  148 ; 
cities  having  charters  providing  for, 
148-149. 

Instructed  vs.  uninstructed  representa- 
tives in  legislative  bodies,  51. 

Insular  Cases,  the,  228 ;  text  of  deci- 
sion in,  244-258. 

Insurance,  forms  of  state,  292-293. 

Internal  revenue  taxes,  278-279. 

International  relations,  power  of  exec- 
utive head  of  states  in  regard  to,  68 ; 
effect  upon,  of  possession  of  depend- 
encies by  great  states,  231. 

Interpellation  of  ministers  in  Germany, 
190. 

Interstate  Commerce  Act,  summary  of 
paragraphs  in,  and  extracts  from, 
311-322. 

Interstate  Commerce  Commission, 
United  States,  299. 

Iowa,  provisions  in  law  of,  for  operation 
of  the  recall,  149-150. 

Irrigation  works  of  United  States 
government,  289. 

Isthmian  Canal  Convention,  229. 

Italy,  statistics  of  area  and  population 
of,  15  ;  amendment  provisions  lack- 
ing in  constitution  of,  26-27 ;  com- 
position of  upper  house  of  legisla- 
ture of,  41 ;  tabular  presentation  of 
details  concerning  legislature  of, 
58-59  ;  nominal  and  actual  executive 
heads  in,  63-64  ;  position  of  heredi- 
tary monarch  in,  71 ;  cabinet  sys- 
tem in,  76 ;  table  of  ministers  in, 
since  1880,  87  ;  partial  control  of  ju- 
diciary by  executive  in,  90-91 ;  local 
government  system  in,  181 ;  income 
tax  in,  274-275  ;  government  owner- 
ship of  railroads  in,  287-288. 

Japan,  sumptuary  regulations  in,  300 ; 

fiscal  monopolies  in,  300. 
Judges.     See  Judiciary. 


Judicial  activities  of  government,  33. 

Judicial  interpretation  of  United  States 
constitution,  29-30. 

Judiciary,  definition  and  functions  of 
the,  88-89  ;  qualifications  of  judges, 
89 ;  methods  of  appointment  of 
judges,  89-90;  tenure  of  office  of 
judges,  90-91;  compensation  of 
judges,  91 ;  division  of  work  among 
different  grades  of  courts  and  judges, 
91 ;  criminal  and  civil  cases  and 
courts,  93-94 ;  administrative  courts 
in  foreign  countries,  94-95 ;  organi- 
zation of  judiciary  singly  or  in  small 
groups,  95  ;  the  jury  system,  95^96  ; 
powers  and  functions  of  judiciary 
in  matters  affecting  legislation,  97 ; 
procedure  in  courts,  98-99 ;  juris- 
diction of  various  courts,  99 ;  right 
of  appeal  from  decisions  of  courts, 
99-100  ;  penalties  and  punishments 
inflicted  by  courts,  100-101;  deci- 
sions illustrating  power  of  Supreme 
Court  over  legislation,  102-112; 
inadvisability  of  applying  the  recall 
to  judiciary,  132  ;  system  in  common- 
wealths of  United  States,  197-200; 
exercise  of  civil  function  of  govern- 
ment by,  281.  See  Supreme  Court. 

Jury  system,  95-96. 

Justices  of  the  peace,  courts  of,  in 
United  States  commonwealths,  198. 

Kantonsrath,  Swiss  local  council,  186. 
Kreise,  in  Prussian  local  government 

system,  191. 
Kreistag,  assembly  of  the  Kreise,  191- 

192. 

Labor,  governmental  regulation  of, 
303-304. 

Land  grants  to  railroads  by  United 
States  government,  299. 

Landrath,  Swiss  local  council,  186 ; 
chief  executive  of  the  circle  in  Prus- 
sian local  government  system,  191. 

Landsgemeinde,  Swiss  governing  body, 
186,  188. 

Legislation,  function  of  executive 
heads  as  to  suggesting,  initiating, 
and  influencing,  65 ;  powers  and 
functions  of  judiciary  in  matters 
affecting,  88,  97. 

Legislative  activities  of  government, 
33. 

Legislative  department  of  government, 
election  of  chief  executive  by,  in 
France  and  Switzerland,  10,  72; 
advantages  and  disadvantages  of 
election  of  executive  head  by,  10, 
72 ;  superior  position  of,  in  govern- 


384 


INDEX 


mental  organization,  38 ;  powers  of 
the,  38 ;  systems  of  representation 
in  the,  38  ff . ;  organization  into  two 
chambers,  39  ;  comparative  uniform- 
ity in  method  of  election  to  lower 
chamber,  39-^40 ;  composition  of 
upper  houses  in  different  states,  40- 
41 ;  advantages  and  disadvantages 
of  two  legislative  houses,  45-46 ; 
powers  of  the  two  chambers,  47-48 ; 
relative  position  of  the  two  houses 
in  powers  in  general,  48 ;  rules  of 
procedure  in  national  bodies,  48-50 ; 
position  as  to  responsibility  of  individ- 
ual legislators,  50-51 ;  instructed  and 
uninstructed  representatives,  51 ; 
tabular  presentation  of  details  con- 
cerning national  legislatures  of  differ- 
ent states,  52-61 ;  executive  viewed 
as  agent  of  the,  62-^63 ;  functions  of 
executive  head  distinct  from,  65  ff . ; 
power  of  executive  head  to  convene 
and  open  legislative  body,  67-68 ; 
appointive  power  of  electorate  in  the, 
123 ;  importance  of  electorate's 
power  of  appointment,  124  ;  methods 
of  appointment  or  election,  124-131. 

Legislatures  of  commonwealths  in 
United  States,  194-196. 

Leopold  II  and  the  Belgian  Congo,  225. 

Liberia,  relations  between  United 
States  and,  229. 

Libraries,  public,  maintenance  of,  an 
optional  governmental  function,  290. 

Lieutenant  governor,  office  of,  in  com- 
monwealths of  United  States,  194, 
195,  197. 

Limited  vote  plan  of  minority  repre- 
sentation, 129. 

List  system  of  proportional  represen- 
tation, 126-127. 

Local  government,  various  kinds  of,  2  ; 
difference  between  systems  of,  in 
unitary  and  in  federative  govern- 
ments, 176-177 ;  method  of  deter- 
mining areas  of,  in  the  two  types 
of  government,  177-178;  French 
system  of,  178-181 ;  Italian  system 
of,  181 ;  English  system  of,  181-185  ; 
in  Switzerland,  186-188 ;  democratic 
nature  of  Swiss,  188 ;  in  Germany, 
188-192  ;  in  German  cities,  192-193  ; 
undemocratic  nature  of  German, 
193  ;  in  United  States,  193-206. 

Local  Government  Acts,  English,  181, 
182. 

Local  Government  Board,  181,  184- 
185. 

Lords,  British  House  of,  40,  53. 

Lotteries,  public,  as  examples  of  fiscal 
monopolies,  300. 


Madison,  James,  quoted  on  the  separa- 
tion of  governmental  powers,  37. 

Magna  Charta,  provisions  of,  22. 

Maire,  office  of,  in  French  local  govern- 
ment system,  180. 

Mandamenti  in  Italian  local  govern- 
ment system,  181. 

Marbury  v.  Madison,  decision  in  case 
of,  102-105. 

Marshall,  Chief  Justice,  decision  of, 
giving  United  States  Supreme  Court 
power  over  legislation,  102-105 ; 
decision  concerning  the  commerce 
clause  in  the  constitution,  108-112. 

Massachusetts,  separation  of  govern- 
mental powers  by  constitution  of, 
34-35 ;  use  of  limited  vote  plan  in, 
129  ;  poll  tax  in,  274 ;  savings  bank 
insurance  in,  293. 

Mayor,  in  cities  of  United  States,  203, 
204. 

Mexico,  reelection  of  chief  executive  in, 
74;  table  of  statistics  regarding 
executive  head  in,  84. 

Michigan,  Primary  Elections  Act  in, 
169-174. 

Militant  suffragettes  in  England,  119. 

Military  function  of  government,  268- 
270. 

Ministers,  influence  of,  in  England, 
upon  legislation,  65  ;  executive  power 
held  by,  in  England,  70  ;  table  of,  in 
England,  France,  and  Italy,  87; 
control  of,  in  England,  in  hands  of 
the  electorate,  123. 

Ministries,  effect  on,  of  political  party 
system  in  continental  Europe,  158. 

Minority  representation,  schemes  of, 
125-126,  129-131. 

Money,  abolition  of,  advocated  by 
socialists,  264. 

Money  bills,  powers  of  legislative 
chambers  in  regard  to,  47-48 ;  in 
legislatures  of  commonwealths  of 
United  States,  196 ;  in  Europe  and 
in  United  States,  280-281. 

Mongolian  race  not  admitted  to  citi- 
zenship in  United  States,  116. 

Montesquieu,  influence  of,  on  separa- 
tion of  powers  of  government,  34 ; 
fundamental  value  of  theory  of,  37. 

Morals,  governmental  regulation  of, 
304. 

Municipal  council  in  communes,  in 
French  local  government  system, 
180. 

Municipal  ownership,  of  street  transit 
lines,  288;  of  supply  plants,  289- 
290. 

Museums,  maintenance  of,  an  optional 
governmental  function,  290. 


INDEX 


385 


National  Assembly,  French,  election 
of  President  of  Republic  by,  10,  72 ; 
supreme  power  of,  17 ;  amendment 
of  constitution  by,  28. 

National  committee  of  political  party, 
163. 

National  convention  of  political  party, 
163. 

Nationality,  nullification  of  principle 
of,  by  acquisition  of  dependencies  by 
states,  230. 

Natural  resources,  government  con- 
servation of,  289. 

Navigation  laws,  English,  as  examples 
of  governmental  regulation  of  com- 
merce, 299. 

Navy,  supreme  command  of,  vested  in 
executive  head,  68-69  ;  maintenance 
of,  a  function  of  government,  269. 

Negroes,  restrictions  on  exercise  of 
suffrage  by,  in  the  South,  116. 

New  England,  town  government  in, 
201-202. 

New  Zealand,  suffrage  held  by  women 
in,  119;  initiative  and  referendum 
used  in,  133. 

Nomination  by  petition,  method  of, 
166-167. 

Nomination  of  candidates  for  office  by 
political  organizations,  163  ;  system 
in  United  States  compared  with 
that  hi  other  states,  164;  former 
evils  connected  with  primary  system 
of,  165 ;  steps  toward  reform, 
165-166 ;  introduction  of  system  of 
direct,  166. 

North  German  Federation,  modern 
Germany  descended  from,  12 ;  states 
which  composed,  12. 

Northwest  Ordinance  of  1787,  226; 
text  of,  237-243. 

Norway,  agitation  for  initiative  and 
referendum  in,  133. 

Ohio,    statistics   showing   injustice   of 

election  by  majorities  in,  139. 
Old  age  insurance  for  workingmen  in 

Germany,  292. 
Old  age  pension  law  in  England,  292 ; 

text  of,  306-309. 
Optional    functions    of    government, 

285-305. 

Ordinance  of  1787,  226,  237-243. 
Ordinance  power  of  executive  heads, 

67. 
Oregon,  initiative  and  referendum  in, 

143-147. 

Panama  Zone,  area  and  population,  15 
rights  of  United  States  in,  and  gov- 
ernment of,  229. 

2c 


?ardoning  power,  vested  in  executive 
head,  69 ;  held  by  governors  of 
commonwealths  of  United  States, 
197. 

Parishes  in  English  local  government 
system,  181,  183. 

'arks,  maintenance  of,  an  optional 
governmental  function,  290. 
Parliament,  British,  composition  of 
upper  chamber,  40 ;  tables  of  details 
concerning,  52-53 ;  convened  and 
opened  by  executive  head,  68 ;  su- 
premacy of,  as  contrasted  with 
American  Congress,  98. 

Parties.     See  Political  parties.  ^ 

Penalties  and  punishments  inflicted 
by  courts,  100-101. 

Pennsylvania,  use  of  limited  vote  plan 
in,  129. 

People,  importance  of  the,  in  modern 
government,  113. 

Peru,  direct  popular  election  of  exec- 
utive head  in,  9,  71. 

Philippine  Islands,  area  and  popula- 
tion, 15;  government  of,  as  a  de- 
pendency of  United  States,  227- 
229. 

Platform  of  political  party,  163. 

Political  parties,  defined,  152 ;  mem- 
bership in,  voluntary,  152 ;  are 
extra-legal  institutions,  152 ;  not 
permitted  in  autocracies  but  devel- 
oped by  democracies,  153  ;  effect  of 
great  issues  upon  formation  of,  153- 
154 ;  importance  of  nature  of  issue 
on  which  parties  divide,  154-155 ; 
common  recognition  of,  as  an  es- 
sential element  in  democratic  sys- 
tem, 155-156 ;  difference  between 
conditions  as  to,  in  England  and  the 
United  States  and  in  states  of  con- 
tinental Europe,  157-158;  com- 
parison of  the  continental  and  the 
two-party  system,  158-160;  su- 
perior efficiency  of  two-party  sys- 
tem, 159-160;  necessity  and  pur- 
pose of  organization  of,  160-161 ; 
functions  of  the  organization,  161- 
162 ;  completeness  of  organization 
in  United  States,  162;  characteris- 
tics of  organization,  162-163  ;  nom- 
ination of  candidates  for  office  by 
organization,  163 ;  importance  of 
character  of  primaries  to  proper 
working  of,  164-165 ;  evils  connected 
with,  and  remedies,  165-167 ;  table 
of  parties  in  modern  states,  168. 

Political  rings,  165. 

Poll  tax,  a  form  of  direct  tax,  273,  274 ; 
in  France  and  in  United  States,  274 ; 
injustice  worked  by,  274. 


386 


INDEX 


Population  of  leading  states,  statistics 

of,  15. 

Porto  Rico,  area  and  population,  15 

government  of,  as  a  dependency  oi 

United  States,  227-228. 

Postal  savings  banks,  286-287. 

Postal    service,    among    the    optional 

functions  of  government,  287. 

Prefects    of    dtpartements    in    French 

local  government  system,    178-179, 

181. 

Previous  question,  moving  the,  50. 
Primaries,  political,  162 ;  importance 
of  character  of,  in  carrying  out 
functions  of  party  organization, 
164-165 ;  rise  of  abuses  of  system, 
165 ;  state  supervision  of,  to  correct 
evils,  165-166;  introduction  of 
system  of  direct,  166 ;  lists  of  presi- 
dential and  state,  held  in  1912, 
174-175. 
Primary  Elections  Act  in  Michigan, 

text  of,  169-174. 
Privy    council,    evolution    of    cabinet 

from,  in  England,  74-75. 
Probate  courts,  198. 
Professions,    governmental    regulation 

of,  305. 

Property  qualifications  for  exercise  of 
the      suffrage,      120-121 ;      analogy 
between  weighted  voting  and,   123. 
Property  taxation,  276-277. 
Proportional    representation,    schemes 
of,    125-129;     in   Switzerland,    187. 
Prosecuting  attorney,  office  of,  in  com- 
monwealths of  United  States,  199. 
Protective    tariffs,    277 ;     imposed    in 
United  States  to  foster  home  indus- 
tries, 300. 

Protectorate,  defined,  219. 
Provinces,  in  Italian  local  government 
system,  181 ;    governmental  division 
peculiar  to  Prussia  in  German  Em- 
pire, 190. 

Prussia,  property  qualification  for 
exercise  of  the  suffrage  in,  121 ;  in- 
fluence of,  on  local  government 
system  throughout  German  Empire, 
190 ;  system  of  local  government  in, 
190-193  ;  income  tax  in,  274 ;  fiscal 
monopoly  in,  300. 

Public    safeguards,    provision    of,    an 
optional  governmental  function,  288. 
Public  safety,  regulation  of,  by  gov- 
ernment, 304-305. 

Public  works,  among  the  optional 
functions  of  government,  286 ;  mat- 
ters included  under,  286-290. 

Quarantine  regulations,  governmental, 
304, 


Railroads,  government  ownership  of, 
287-288 ;  governmental  regulation 
and  encouragement  of,  in  United 
States,  299. 

Rates,  English,  184. 

"Readings"  of  bills  introduced  in 
national  legislatures,  49. 

Recall,  the,  131-132  ;  text  to  illustrate 
provisions  for  operation  of  the, 
149-150 ;  statistics  on  use  of  the, 
151 ;  examples  of  use  of  the,  151. 

Reclamation  Act  of  1902,  in  United 
States,  289. 

Reelection  of  executive  heads,  73-74. 

Referendum,  the,  defined,  133.  See 
Initiative  and  referendum. 

Regierungsbezirke  in  Prussian  local 
government  system,  191. 

Regierungsrath,  Swiss  administrative 
council,  186. 

Registration  as  a  qualification  for 
exercise  of  the  suffrage,  117. 

Reichstag,  provisions  in  German  con- 
stitution relative  to,  343-344. 

Representation,  systems  of,  in  legis- 
lative bodies,  38  ff.,  124-131. 

Representative  system  hi  democracies, 
7-8 ;  abuses  and  weaknesses  of,  8. 

Republican  party  in  United  States, 
issue  leading  to  formation  of,  154. 

Residence  as  a  qualification  for  exercise 
of  the  suffrage,  117. 

Restriction  of  debate  hi  legislative 
bodies,  50. 

Retaliatory  tariffs,  277. 

Revenues,  methods  in  different  states  of 
adjusting,  to  expenditures,  279-280. 

Revenue  tariffs,  277. 

Roads,  building  of,  an  optional  govern- 
mental function,  288-289. 

Rules  of  procedure,  in  national  leg- 
islative bodies,  48-50 ;  in  legislatures 
of  commonwealths  of  United  States, 
196. 

Rural  districts  in  English  local  govern- 
ment system,  181,  182,  183. 

Russia,  an  example  of  autocratic  gov- 
ernment, 6. 

Sanitary  regulations  enforced  by  gov- 
ernment, 304. 

Savings  bank  insurance  in  Massa- 
chusetts, 293. 

Schools,  public,  as  an  optional  func- 
tion of  government,  290. 

Scientific  bureaus,  maintenance  of,  an 
optional  function  of  government, 
290-291. 

Self-governing  colonies,  220. 

Separation  of  governmental  powers, 
33-37. 


INDEX 


387 


Sex  restrictions  on  exercise  of  the 
suffrage,  117-119.  - 

Sherman  Anti-trust  Act,  301-302; 
text  of,  309-311. 

Smith,  Adam,  quoted  on  taxation, 
272-273. 

Socialist  theory  of  functions  of  govern- 
ment, 262-266. 

South  Africa,  an  example  of  self-gov- 
erning colony,  220. 

Southern  States,  restrictions  on  negro 
suffrage  in,  116;  town  and  county 
governments  in,  201,  202. 

Sovereignty,  defined,  17 ;  location  of, 
in  ancient  and  in  modern  systems 
of  government,  17-18 ;  independ- 
ence and  unity  as  implications  of, 
18-19  ;  importance  of  element  of,  in 
the  state,  20. 

Spain,  composition  of  upper  house  of 
legislature  of ,  41 ;  compulsory  voting 
in,  122 ;  income  tax  in,  274. 

Specific  duties,  277. 

Sphere  of  influence,  218-219;  text  of 
treaties  to  illustrate,  233-237. 

Standard  Oil  Company,  dissolution  of, 
by  government,  302. 

Standeskommission,  Swiss  administra- 
tive council,  186. 

State,  defined,  1 ;  distinction  between 
government  and,  1-2 ;  government 
of  the,  compared  with  various  kinds 
of  local  government,  2  ;  sovereignty 
belongs  to  the,  and  not  to  govern- 
ment, 25. 

Stock  watering,  301. 

Street  transit  lines,  municipal  owner- 
ship of,  288. 

Subprefects  of  arrondissements  in 
French  local  government  system, 
179. 

Subsidies,  government,  299. 

Suffrage,  popular  exercise  of,  113; 
limitations  of  the,  113-114;  propor- 
tion of  population  which  possesses 
the,  114;  qualifications  for  exercise 
of  the,  114-121;  compulsory,  121- 
122. 

Sumptuary  regulations,  defined,  300. 

Supply  plants,  governmental  owner- 
ship and  operation  of,  289-290. 

Supreme  Court  of  United  States,  inter- 
pretation of  constitution  by,  29-30  ; 
powers  of,  regarding  legislative 
matters,  97-98 ;  text  of  decision  on 
which  power  of,  over  legislation  is 
based,  102-105;  list  of  cases  in 
which  power  has  been  used  by,  to 
annul  congressional  legislation,  106 ; 
cases  illustrating  judicial  interpre- 
tation of  the  constitution,  107-108 ; 


decision  concerning  power  of,  to 
interpret  commerce  clause  in  the 
constitution,  108-112. 

Supreme  courts  in  commonwealths  of 
United  States,  198. 

Surrogates'  courts,  198. 

Sweden,  income  tax  in,  274. 

Switzerland,  smaller  cantons  of,  ex- 
amples of  direct  democracies,  7; 
indirect  election  of  chief  executive 
in,  10 ;  composition  of  upper  house 
of  legislature  of,  43-44 ;  powers  of 
the  two  legislative  houses  of,  con- 
cerning money  bills,  47 ;  executive 
head  of,  a  council  of  seven  persons, 
63 ;  table  of  statistics  regarding 
executive  head  in,  85;  successful 
results  of  trial  of  initiative  and 
referendum  in,  134 ;  text  of  provi- 
sions for  initiative  and  referendum 
in,  142-143 ;  federative  type  of 
local  government  in,  186-188 ;  ideal 
democratic  conditions  in,  188 ;  in- 
come tax  in,  274 ;  sumptuary  regu- 
lations in,  300. 

Syndics  of  communes  in  Italy,  181. 

Tariffs,  a  form  of  indirect  taxation, 
274,  277 ;  revenue,  protective,  and 
retaliatory,  277  ;  excise  or  internal 
revenue  duties,  278 ;  specific  and  ad 
valorem  duties,  277 ;  commodities 
to  which  applied,  278 ;  protective, 
imposed  in  United  States  to  foster 
home  industries,  300. 

Taxation,  purpose  and  methods  of, 
271 ;  principles  of,  set  forth  by 
Adam  Smith,  272-273;  further 
principles  of,  273 ;  direct  and  in- 
direct, 273-274  ;  budget  system  for 
determining  amount  to  be  raised  by, 
279-280. 

Taxes,  assessment  and  collection  of, 
279. 

Telegraph  and  telephone  service,  gov- 
ernment ownership  of,  287. 

Tenure  of  office,  of  elected  executive 
heads,  73;  of  judges  of  federal 
courts,  90-91 ;  of  judges  of  common- 
wealth courts  of  United  States,  199. 

Territories  of  United  States,  govern- 
ment of,  226-227. 

Thoroughfares,  maintenance  of,  an 
optional  governmental  function, 
288-289. 

Three-class  system  of  voting  in  Prussia, 
192,  193,  207. 

Tory  party  in  England,  causes  leading 
to  formation  of,  154. 

Town  meetings  in  commonwealths  of 
United  States,  202. 


388 


INDEX 


Towns,  in  local  government  system  of 
United  States,  201-202 ;  as  unit  of 
local  government  in  New  England 
States,  201-202. 

Treaties,  power  of  executive  head  con- 
cerning, 68. 

Trusts,  defined,  300;  arguments  for 
and  against,  300-301 ;  regulation  of, 
by  United  States  government,  301- 
302,  309-311 ;  in  France,  Austria, 
Germany,  and  England,  302. 

Unitary  governments,  5,  11,  176;  de- 
scent of,  from  earlier  centralized 
monarchies,  11 ;  shown  graphically, 
16 ;  areas  of  local  government  in, 
177,  178;  type  of,  in  French  local 
government  system,  178-181 ;  local 
government  system  in  Italy,  181 ; 
kind  of,  found  in  English  local  gov- 
ernment system,  181-185. 

United  States,  election  of  chief  execu- 
tive in,  9,  71 ;  an  example  of  federal 
government,  11-12;  statistics  of 
area  and  population,  15  ;  location  of 
sovereign  power  in,  17-18 ;  con- 
stitution of,  an  example  of  a  written 
constitution,  21-22  ;  matter  in  con- 
stitution of,  dealing  with  organiza- 
tion of  government,  26  ;  amendment 
provisions  in  constitution  of,  27-28  ; 
method  of  election  of  national 
senate  of,  42,  44 ;  powers  of  the  two 
legislative  chambers  of,  concerning 
money  bills,  47 ;  rules  of  procedure 
in  Congress  of,  48-49;  tabular 
presentation  of  details  concerning 
national  legislature  of,  60-61 ;  exec- 
utive head  in,  and  his  powers,  63- 
68  ;  location  of  power  to  declare  war, 
69 ;  tenure  of  office  of  executive 
head,  73 ;  departments  of  govern- 
ment in,  78 ;  table  of  statistics 
regarding  executive  head  in,  86 ; 
gradation  of  courts  in,  92 ;  federal 
courts  and  commonwealth  courts 
in,  96-97  ;  powers  of  Supreme  Court 
in,  regarding  legislation,  and  results, 
97-98;  qualifications  for  exercise  of 
suffrage  in,  114-115;  woman  suf- 
frage in,  119  ;  basis  of  representation 
in  houses  of  Congress,  124;  initia- 


tive and  referendum  in,  133-134 ; 
political  party  system  in,  157, 
159-160 ;  completeness  of  party 
organization  in,  162  ;  political  parties 
in,  in  1912,  168;  system  of  local 
government  in,  186,  193-206 ;  judi- 
ciary and  courts  in  commonwealths 
of,  197-200;  dependencies  of,  226- 
229  ;  poll  tax  levied  in,  274  ;  income 
tax  in,  274-275 ;  unscientific  man- 
agement of  revenues  by  federal 
government  of,  280 ;  railroad  to  be 
built  by,  to  Alaska,  288 ;  conserva- 
tion of  natural  resources  in,  289 ; 
governmental  regulation  of  banking 
in,  297 ;  regulation  of  interstate 
commerce  in,  299 ;  text  of  con- 
stitution of,  359-375. 

Unity,  implied  by  notion  of  sovereignty, 
18,  19. 

Urban  districts  in  English  local  govern- 
ment system,  181,  182,  183. 

Vaccination,  governmental  enforce- 
ment of,  304. 

Venice,  medieval,  an  example  of  aris- 
tocratic government,  7. 

Veto  power  of  executive  heads,  66-67, 
196-197. 

Voters,  organization  and  education  of, 
by  political  parties,  161-162. 

Voting,  the  function  of  the  electorate, 
121 ;  experiments  in  compulsory, 
121-122;  weighted,  122-123;  pro- 
visions for  weighted  and  compulsory, 
in  Belgian  constitution,  137-138 ; 
Prussian  three-class  system  of,  192, 
193,  207. 

War,  location  of  power  to  declare,  69, 

270. 
Weighted  voting,  122-123  ;   provisions 

for,  in  constitution  of  Belgium,  137- 

138 ;    three-class  system,  in  Prussia, 

192,  193,  207. 
Whig  party  in  England,  causes  leading 

to  formation  of,  154. 
Woman   suffrage,    arguments   for   and 

against,  117-119. 
Workingman's  insurance  in  Germany, 

292. 


/TAHE   following  pages    contain   advertisements  of  a 
few  of  the  Macmillan  books  on  kindred  subjects. 


1 


American  Government  and  Politics 

By  CHARLES  A.  BEARD 

Associate  Professor  of  Politics  in  Columbia  University 

New  and  Revised  Edition,  Cloth,  Crown  8vo,  788  pp.,  index,  $2.10  net 

A  work  designed  primarily  for  college  students,  but  of  considerable  interest  to  the 
general  reader.  Full  attention  has  been  paid  to  topics  that  have  been  forced  into 
public  attention  by  the  political  conditions  of  the  present  time.  A  special  feature  is 
the  page  references  made  to  the  author's  "Readings  in  American  Government 
and  Politics,"  in  order  to  facilitate  the  use  of  the  latter  as  a  supplementary  text. 

In  this  revised  edition  the  author  has  recorded  the  leading  changes  of  the  last 
four  years,  with  special  emphasis  on  local  tendencies  and  general  principles. 

"The  great  merit  of  the  work  is  its  absence  of  dogmatism.  It  gives  exactly  what 
it  pretends  to  give,  a  clear,  scholarly  review,  first  of  the  history  of  our  political 
system  and  secondly  of  its  practical  operation.  .  .  .  The  book  can  be  highly 
recommended." — The  Nation. 

"The  citizen  who  gives  it  a  careful  reading  will  arise  from  it  a  better  citizen.  . . 
It  is,  in  brief,  a  truly  notable  book,  and  one  that  was  long  needed." — Baltimore  Sun. 

Readings  in  American  Government  and  Politics 

New  and  Revised  Edition,  Cloth,  Crown  8vo,  638  pp.,  $1.90  net 

A  collection  of  interesting  material  illustrative  of  the  different  periods  in  the 
history  of  the  United  States,  prepared  for  those  students  who  desire  to  study 
source  writings.  It  is  an  admirable  supplement  to  American  Government  and 
Politics  described  above. 

The  author  has  brought  the  work  abreast  of  current  questions  by  adding  extracts 
from  the  party  platforms  of  1912  and  selections  illustrating  presidential  preference 
primaries,  changes  in  the  procedure  of  the  House  of  Representatives,  the  recall,  and 
the  recall  of  judicial  decisions.  The  Constitution,  with  the  latest  amendments, 
has  been  included. 

"The  volume  will  be  useful  as  a  textbook  and  convenient  for  reference  by  those 
who  wish  to  have  an  intelligent  conception  of  our  political  life  and  history." — 

Education. 

"  The  book  affords  a  very  valuable  adjunct  to  the  work  of  instruction  in  American 
history  and  political  science." — The  Dial.± 

"The  work  is  well  planned  and  well  executed."— The  Nation. 


THE  MACMILLAN  COMPANY 

Publishers        64-66  Fifth  Avenue         New  York 


The  Governments  of  Europe 

By  FREDERIC  AUSTIN  OGG,  Ph.D. 

Assistant  Professor  of  Political  Science  in  the  University  of  Wisconsin 

Cloth,  8w,  646  pp.  +  index,  $3.00  net 

Of  the  thirty-four  chapters  in  this  volume  on  the  Governments  of  Europe,  eight 
are  devoted  to  Great  Britain,  six  to  Germany,  four  to  France,  four  to  Austria- 
Hungary,  three  to  Italy,  two  to  Switzerland,  and  one  each  to  Holland,  Belgium, 
Denmark,  Sweden,  Norway,  Spain,  and  Portugal.  The  author  has  confined 
himself  largely  to  a  description  of  the  governments  of  to-day,  although  he  has  given 
such  brief  accounts  of  the  historical  origin  and  development  of  the  present  con- 
stitutions as  are  necessary  to  enable  the  student  to  acquire  a  sound  and  compre- 
hensive view  of  the  organization  and  administration  of  the  existing  governments. 
So  far  as  is  possible  in  the  limits  of  a  single  volume,  the  author  has  treated  the 
federal,  state,  and  local  governments,  the  executive,  legislative,  and  judicial 
branches  thereof,  and  the  organizations,  doctrines,  and  workings  of  the  political 
parties.  Comparisons  of  the  governments  of  the  different  countries  have  been 
made  when  and  only  when  they  will  be  found  of  real  interest  and  value  to  the 
student.  The  book  will  be  found  especially  adapted  to  use  as  a  text  in  college 
courses  on  Comparative,  Constitutional,  or  European  Governments. 

"Professor  Ogg's  book  will  prove  serviceable  for  the  general  reader  who  wishes 
clear  and  concise  accounts  of  how  government  is  administered  in  the  European 
states."— The  Dial. 

"A  very  painstaking,  comprehensive,  and  useful  compendium." — American 
Review  of  Reviews. 

"The  present  volume  is  one  of  the  most  elaborate  and  best  we  have  had  the 
pleasure  of  examining." — Education. 


THE  MACMILLAN  COMPANY 

Publishers         64-66  Fifth  Avenue         New  York 


The  Government  of  American  Cities 

By  WILLIAM  BENNETT  MUNRO,  Ph.D.,  LL.B. 

Professor  of  Municipal  Government  in  Harvard  University 

Cloth,  8vo,  401  pp.,  $2.00;  postage  extra 

"Prof.  Munro  has  examined  carefully  the  record  of  municipal  activities  in  this 
country,  and  presents  in  the  text  a  study  of  conditions  in  our  cities  which  is  at  once 
enlightening  and  bound  to  impress  the  thoughtful  reader.  The  historical  manner 
alone  will  make  the  book  valuable  for  all  time.  It  is  doubtful  if  a  more  scholarly 
and  unprejudiced  presentation  of  the  tendencies  of  the  times,  showing  the  faults 
and  advantages  of  our  systems  of  municipal  management,  has  before  appeared. 
The  book  will  be  appreciated  everywhere.  ...  a  fresh  contribution  to  a  weighty 
and  important  public  discussion." — Philadelphia  North  American. 

By  THE  SAME  AUTHOR 

The  Government  of  European  Cities 

Cloth,  8vo,  409  pp.,  $2.00  net;  postage  extra 

"The  most  effective  work  now  done  in  political  science  is  that  going  on  in  the 
field  of  applied  politics.  Avoiding  abstract  principles  and  a  priori  speculation, 
it  addresses  itself  to  examination  of  the  actual  organization  of  public  authority 
and  of  the  way  in  which  governmental  function  is  carried  out.  In  'The  Govern- 
ment of  European  Cities'  (Macmillan),  Prof.  William  Bennett  Munro  of  Harvard 
has  made  a  valuable  addition  to  this  literature.  He  gives  a  detailed  account  of  the 
way  in  which  municipal  government  is  formed  and  carried  on  in  France,  Germany, 
and  England.  The  style  is  clear,  straightforward,  and  unpretentious,  and  the 
treatment  is  steadily  confined  to  the  subject  in  hand  without  any  attempt  to 
point  a  moral  or  aid  a  cause.  At  the  same  time  references  to  American  municipal 
methods  frequently  occur  as  incidents  of  the  explanation  of  European  procedure, 
and  these  add  to  the  value  of  the  book  for  American  readers.  The  writing,  while 
succinct,  is  copious  in  detail,  and  only  administrative  experts  in  the  countries 
respectively  considered  could  check  off  all  the  statements  made;  but  the  work 
itself  affords  intrinsic  evidence  of  its  painstaking  accuracy.  One  cannot  read  the 
book  without  being  deeply  impressed  by  the  essential  simplicity  of  the  principles 
upon  which  European  municipal  government  is  constituted." — The  Nation. 


THE  MACMILLAN  COMPANY 

Publishers        64-66  Fifth  Avenue        New  York 


Readings  in  Political  Philosophy 

BY  FRANCIS  W.   COKER 
Professor  of  Political  Science  in  the  Ohio  State  University 

Cloth,  8w,  xv  +  57  j  pp.,  bibliography,  index,  $2.25  net 

It  is  coming  to  be  more  commonly  acknowledged  that  train- 
ing in  the  thoughtful  consideration  of  the  general  purposes  and 
means  of  government  is  indispensable,  even  for  a  satisfactory 
treatment  of  practical  problems  in  the  field.  The  design  of  this 
volume  is  to  present  in  handy  form  significant  parts  of  the  most 
noteworthy  philosophical  discussions  of  political  questions,  from 
Plato's  time  to  the  nineteenth  century.  The  need  of  such  a 
work  has  been  demonstrated  by  the  experience  that  the  more 
intelligent  and  vivid  impression  of  the  development  of  political 
thought  comes  from  a  reading  at  first  hand  of  the  original 
writings,  rather  than  from  a  reliance  solely  upon  historical  and 
expository  treatises.  The  volume  comprises  extended  selections 
from  the  works  of  Plato,  Aristotle,  Polybius,  Aquinas,  Dante, 
Marsiglio,  Machiavelli,  Calvin,  "Junius  Brutus,"  Bodin,  Hooker, 
Grotius,  Milton,  Hobbes,  Harrington,  Locke,  Montesquieu, 
Rousseau,  Paine  and  Bentham.  Each  selection  is  preceded  by 
a  brief  introduction  giving  in  concise  form  the  historical  setting 
of  the  author's  views,  and  is  followed  by  references  to  works  of 
history  and  criticism. 

The  book  will  be  useful  both  as  a  handbook  for  college  courses 
in  political  philosophy  and  as  a  convenient  compilation  for  gen- 
eral reading  in  that  field.  Some  of  the  selections  are  from  works 
which  are  not  ordinarily  available  in  English. 


THE    MACMILLAN   COMPANY 

Publishers  64-66  Fifth  Avenue  New  York 


A  History  of  Political  Theories 

2  Volumes 

By  WILLIAM  ARCHIBALD  DUNNING,  Ph.D. 
Professor  of  History  in  Columbia  University 

I  —  ANCIENT  AND  MEDIAEVAL 
II  — FROM  LUTHER  TO  MONTESQUIEU 

Volume  I,  360  pp.,  Volume  II,  459  pp.,  Each,  Cloth,  8vo,  $2.50  net 

The  successive  transformations  through  which  the  political  consciousness  of 
men  has  passed  from  early  antiquity  to  modem  times  are  stated  in  a  clear,  in- 
telligible manner,  and  to  aid  in  a  fuller  study  of  the  subject  references  are 
appended  to  each  chapter  covering  the  topics  treated  therein.  At  the  end  of 
each  volume  has  been  placed  an  alphabetical  list  containing  full  information  as 
to  all  the  works  referred  to,  together  with  many  additional  titles. 

To  supplement  Professor  Dunning's  work  by  providing  appropriate  source 
material  was  one  of  Professor  Coker's  chief  purposes  in  preparing  his  "Readings 
in  Political  Philosophy  "  described  on  the  preceding  page. 

"Professor  Dunning  presents  us  in  the  first  section  with  a  comprehensive,  con- 
nected account  of  political  theories,  covering  classical  and  mediaeval  times.  That 
in  doing  this  he  has  laid  both  historians  and  political  philosophers  under  great 
obligation  there  can  be  no  question.  The  statements  of  fact  are  uniformly  correct, 
the  criticism,  when  indulged  in,  just,  the  style  accurate  and  clear." — JESSE  MACY, 
in  the  Yale  Review. 

"A  clear  and  succinct  exposition,  conducted  with  a  just  sense  of  proportion, 
is  essential  as  an  introductory  chapter  to  modern  thought;  and  for  this  reason 
Professor  Dunning's  manual,  supplying  as  it  does  this  desideratum,  should  be 
cordially  welcomed  by  every  student  who  has  come  to  realize  that  Plato  and 
Aristotle  alone  will  not  account  for  the  fundamental  presuppositions  and  interests 
of  modern  political  thinking." — Economic  Review. 

"All  things  considered,  Professor  Dunning's  volume  is  one  of  the  most  im- 
portant contributions  yet  made  to  the  history  of  political  science;  .  .  .  not  only  a 
scholarly  work  throughout,  but  is  a  very  readable  book  as  well,  at  once  interesting 
and  accurate." — The  Bookman. 

"Professor  Dunning's  volume  is  as  timely  as  it  is  unique,  and  doubly  timely 
because  it  is  unique.  His  grasp  of  the  theory  of  mediaeval  politics  is  sound,  and 
his  exposition  of  it  is  singularly  clear  and  terse;  ...  a  volume  admirable  in  intent, 
in  suggestiveness,  and  in  clearness  of  insight.  It  deserves  a  place  by  the  side  of 
Lecky's  'History  of  European  Morals' — a  work  that  he  adequately  compliments." 
— New  York  Commercial  Advertiser. 


THE  MACMILLAN  COMPANY 

Publishers         64-66  Fifth  Avenue         New  York 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN  DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


DEC  3  0  1366 


DEP 


LD  21A-50w-4,'59 
(A1724slO)476B 


General  Library 

University  of  Californii 

Berkeley 


\C131087 


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UNIVERSITY  OF  CALIFORNIA  LIBRARY 


